Zoe Chemical Co., Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1966

160 N.L.R.B. 1001 (N.L.R.B. 1966)

ZOE CHEMICAL CO., INC. 1001
44, AFL-CIO, wit Ii respect to the effects on our employees of
our decision to close the Bleeker Street plant, and reduce to
writing any agreement reached as a result of such bargaining.
W w1Lr, pay the employees of the Bleeker Street plant their
normal wages for the period required by a Decision and Order
of the National Labor Relations Board.
ROYAL PL_LTLNo A -,D POL]SIIINO Co., INC.,
Employer.
Dated---------------- B,'-------------------------------------
(Eepru,entahve) (Title)
Enlployees may comnnunicate directly with the Board's Regional
Office, 014 National Newark Bnlldnlg, 744 Broad Street, Newark,
New Jersey 07102, Telepltone Market 4-0151, if they have any
question concerning this notice or compliance with its provisions.
Zoe Chemical Co., Inc. and Margaret Weber, Esther Hay, Florence
Gagan, Mary Di Guiseppe , Madeline Gioletti, Margaret Pisarra,
Elizabeth Enzman , Helen Sujkowski , Rose De Giacomo , Julia
Struffolino , Mary Fink , Ana Bustos and Local 803, Allied
Aluminum and Industrial Union , Party to the Contract
Local 803, Allied Aluminum and Industrial Union ( Zoe Chemical
Co., Inc. ) and Mary Di Guiseppe , Madeline Gioletti , Elizabeth
Enzman , Rose De Giacomo , Julia Struffolino , Margaret Pisarra,
Esther Hay, Margaret Weber, Florence Gagan , Helen Sujkow-
ski, and Zoe Chemical Co., Inc. , Party to the Contract. Cases
29-C_4-39-1, 2.3, .^. 5, 6, 7, 8, 9, 10, 11, and 12, 29-CI3-16-1, 2.. , 4,.5,
6.7,8. 9, anal 10. September 9,1966
DECISION AND ORDER
On September 30, 1904, Trial Exanuner Samuel M. Singer issued
his Decision in the above-entitled proceeding, finding that Respond-
ent, Zoe Chemical Co., Inc., had not violated Section 8(a) (1) and (3)
of the National Labor Relations Act, as amended, and Respondent,
Local 803, Allied Aluminum and Industrial Union, had not violated
Section 8(b) (1) (A) and (2) of the Act, and he therefore recom-
mended dismissal of the complaint, as set forth in the attached Trial
Examiner's Decision. The Charging Parties filed exceptions to the
Trial Exanuner's Decision and the General Counsel also filed excep-
tions to the Decision and brief in support thereof.
On June 22, 1005, the National Labor Relations Board ordered that
the proceeding be remanded to the Trial Examiner for the purpose
160 NLRB No. 76.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of resolving certain critical credibility issues involving an alleged
tender of dues by the employees involved. The Board further ordered
the Trial Examiner to prepare and serve upon the parties a Supple-
mental Decision containing his findings of fact in this regard and
his conclusions in light of such determination.
After a hearing held on September 8, 9, and 10, 1965, the Trial
Examiner issued his Supplemental Decision on December 28, 1965,
resolving the credibility issues submitted to him and finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain action, as set forth in the attached Trial
Examiner's Supplemental Decision. Respondents filed exceptions to
the Trial Examiner's Supplemental Decision and briefs in support
thereof. The General Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's initial Decision, the Supplemental Decision, the excep-
tions and briefs, and the entire record in this case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations
contained in his Supplemental Decision, as modified hereinafter.
THE REMEDY
The Trial Examiner recommended that Respondent, Zoe Chemical
Co., Inc., and Respondent Union, jointly and severally made whole
the discriminatees for any loss of pay resulting from their unlawful
discharge, with the Union's liability ending 5 days after the date it
notified the Company that it had no objection to the employment of
the discriminatees. Although the Respondent Company cannot be
absolved of violating the Act, it resisted the Union's demands to
discharge these employees from July 24 until October 4, 1963; it
finally yielded to the Union's demands only after an arbitrator's
award requiring employees to join the Union and pay dues and fees
in order to avoid discharge was enforced by the Supreme Court for
New York County, all in proceedings initiated by the Union. In view
of these circumstances, we deem it appropriate to make the Respond-
ent Union primarily liable for making the discriminatees whole for
loss of pay from the date of their unlawful discharges until April 6,
1964, 5 days after the date the Union advised the Company it had
ZOE CHEMICAL CO., INC. 1003
no objection to the reemployment of the discriminatees , with the
Respondent Company only secondarily liable. " With respect to making
the discriminatees whole for loss of pay after April 6, 1964 , we shall
make the Respondent Company solely liable from that date until the
date on which each discriminatee has been offered reinstatement to
her same or substantially equivalent position without prejudice to
seniority or other rights and privileges . We believe , in the special
circumstances of the case , that such an order will remedy the unfair
labor practices committed and, in an equitable manner, fully effectu-
ate the policies of the Act.2 Backpay, less any net earnings in the
period, shall be computed with interest on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing d Heating Co., 138 NLRB 716.
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
[1. Delete paragraph A, 3, (b) of the Recommended Order of the
Trial Examiner's Supplemental Decision and substitute the following
paragraph :
["(b) In conjunction with the Respondent Union, with the
Respondent Union primarily liable, make whole the above-named
employees for any loss of earnings suffered by them from the date
of their terminations until April 6, 1964 .3 The Respondent Company
shall be solely liable for backpay from April 6, 1964, until the date
on which the employees are offered reinstatement to their former or
substantially equivalent positions without loss of seniority or other
lights and privileges , as provided in `The Remedy' section of this
Decision."
[2. Delete paragraph B, 2, '(a) of the Recommended Order of the
Trial Examiner 's Supplemental Decision and substitute the following
paragraph :
["(a) In conjunction with Respondent Company , with Respondent
Union primarily liable, make whole Margaret Weber , Esther Hay,
Florence Gagan, Mary Di Guiseppe , Madelyn Gioletti , Margaret
Pisarra, Elizabeth Enzman, Helen Sujkowski , Rose De Giacomo,
Julia Struffolino , Mary Fink, and Ana Bustos for any loss of pay
suffered by reason of the discrimination against them , until April 6,
1964, as provided in `The Remedy.' section of this Decision."
i As found by the Trial Examiner , Respondent Union's backpay liability terminated when
it withdrew its objections to the employment of the discriminatees.
2 See N.L R B. v Lexington Electric Products Co, Inc, 283 F.2d 54, 57 (C.A 3) ;
N.L.R B. v. Local 138, International Union of Operating Engineers ( Nassau & Suffolk Con-
tractors' Assn. ), 293 F 2d 187 , 199 (C A. 2).
8 The record indicates that the Union 's notification letter was dated March 31, 1964, and
presumably was received by the Company on or about April 1, 1964 Any discrepancy in
the dates utilized herein can be resolved in compliance proceedings.
1004 DECISIONS OF • NATIONAL' LABOR RELATIONS BOARD
[3. Delete the fourth indented paragraph of Appendix A attached
to the Trial Examiner's Supplemental Decision and add the follow-
ing paragraph:
[WE WILL, in conjunction with Local 803, Allied Aluminum
and Industrial Union, with said Union primarily liable until
April 6, 1964 , make whole each of the above-named employees for
any loss of earnings suffered by them by reason of our discrimi-
nation against them and, thereafter , WE WILL be solely liable
for backpay until we offer reinstatement to the above-named
individuals.
[4. Delete the third indented paragraph of Appendix B attached
to the Trial Examiner's Supplemental Decision and add the follow-
ing paragraph:
[WE WILL, in conjunction with the above-named Company,
with ourselves primarily liable, make whole Margaret Weber,
Esther Hay, Florence Gagan, Mary Di Guiseppe, Madelyn Gio-
letti, Margaret Pisarra, Elizabeth Enzinan, Helen Sujkowski,
Rose De Giacomo, Julia Struffolino, Mary Fink, and Ana Bustos
for any loss of pay suffered by them by reason of the discrimina-
tion against them until April 6, 1964.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by the above-named individuals on various dates between
October 8 and 30, 1963, the General Counsel of the National Labor Relations
Board issued a consolidated complaint on February 11, 1964, against Local 803,
Allied Aluminum and Industrial Union (herein called Local 803) and Zoe Chemi-
cal Co., Inc. (herein called Zoe or the Company). In general the complaint alleged
that Local 803 violated Section 8(b)(1) (A) and (2) of the Act by unlawfully
enforcing its union-shop contract with Zoe, by rejecting timely tenders of dues and
initiation fees, and by causing Zoe to discharge the 12 charging parties because of
their concerted activities on behalf of a rival labor organization, Local 8-149, Inter-
national Oil, Chemical and Atomic Workers Union, AFL-CIO (herein called Local
8-149). The complaint alleged that Zoe violated Section 8(a)(1) and (3) of the
Act by discharging the Charging Parties pursuant to the demands of Local 803.
Respondents in their answers denied the commission of the unfair labor practices
charged.
Pursuant to notice, a hearing was held before Trial Examiner Samuel M. Singer
in New York, New York, on various dates between March 30 and April 15, 1964.
All parties appeared and were afforded full opportunity to be heard and to examine
and cross-examine witnesses. Briefs have been received from the General Counsel
and Respondents.
Upon the entire record, the briefs of the parties, and from my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT ZOE
Zoe, a New York corporation, maintains its place of business in New Hyde Park,
New York, where it is engaged in the manufacture, sale, and distribution of floor
waxes, soaps, aerosol sprays, and related products. During the past year, a repre-
ZOE CHEMICAL CO., INC. 1005
sentative period, Zoe manufactured and shipped products valued, in excess of
$50,000 from its plant directly to points outside the State of New York. During
the same period Zoe received at its plant materials valued in excess of $50,000 from
points outside that State. I find that at all material times Zoe has been and is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 803 and Local 8-149 are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The contractual ,elation between Zoe and Local 803 up to June 1963;
the organizational activities of Local 149 in May-June 1963
On March 5, 1962, Zoe and Local 803 entered into a 3-year collective-bargaining
agreement, under which Zoe recognized Local 803 as the exclusive bargaining
representative of its production employees.' The agreement contained a union-
security clause requiring employees in the unit to become and remain members in
good standing in Local 803 as a condition of employment "on the 31st day after
date of employment." It is undisputed that for a year prior to June 1963, the union-
security agreement had not been enforced, although the record indicates that dues
continued to be deducted from employees who had signed checkoff authorization
cards during the Union's original organizational drive. No representatives of Local
803 appeared at the plant, there was no union steward, and the shop was not serv-
iced. Nor did management officials tell new employees anything about the Union,
including the contractual requirement to join it after the first 30 days of
employment .2
In the latter part of May 1963,3 William Hance, one of the employees who signed
a Local 803 card,4 decided to seek representation for the employees through Local
149 and for this purpose contacted Patrick Duffy, a part-time organizer for that
union. Hance arranged a meeting between Duffy and the employees, at which the
latter signed Local 149 authorization cards. By June 10-the date Local 149 filed a
petition for representation with the Regional Director (Case 2-RC-12795)-Duffy
had obtained cards from a majority of the Company's then approximately 27 employ-
ees including all of the Charging Parties. On June 28, the Regional Director dis-
missed Local 149's representation petition, stating that "as a result of the investi-
gation, it appears that, because there is a valid collective bargaining agreement in
effect covering the employees in the unit set forth in the petition, further proceed-
ings are not warranted at this time."
B. Local 803's attempts to enforce the union -security contract;
the resistance of Local 149's adherents
In the meantime, on June 21, Local 803 made its first appearance at the plant
in about a year. Bernard Kalisky, Local 803's president, came to the plant and
addressed the employees. He said that he heard about Local 149's representation
petition and came to tell them they could not bring in another union in view of the
'The execution of the collective agreement was preceded by an organizational cam-
paign in January and February 1963, during which employees signed authorization cards
2 There is no specific evidence in the record demonstrating the extent to which the em-
ployees suffered any detriment for the lack of "servicing" of their interests by the Union-
except that the record shows, and I find, that some employees had failed to receive the
second (February) 1963 pay increase stipulated in the collective agreement between the
Company and Local 803. Apparently the employees obtained the first (1962) wage Increase
provided for in the agreement.
3 Unless otherwise indicated, all dates refer to 1963
* Hance's testimony that he had signed a Local 522 Teamsters card, that I{alisky (who
solicited his signature) introduced himself as a Local 522 agent, and that the March 1962
collective agreement with Zoe was with Local 522 (and not Local 803) is discredited His
testimony on this and on some other matters was vague and confusing. The documentary
evidence (the collective agreement and Hance's signed card) establishes that Rance was
in complete error
1 006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing collective agreement between Zoe and the Union . When employees com-
plained that they never heard of Local 803 , Kalisky acknowledged that his union
was derelict in not servicing the shop and in effect apologized for the Union's
neglect. Kalisky promised "to correct" the situation and "see that the shop is
serviced the way it's supposed to be ," and asserted that Romano-the Local 803
official who was supposed to service the shop-would be fired .5 Kalisky then read
the union security clause from the contract , and explained that "after the 31st day,
they must join or become members of Local 803"; that if they did not do so, he
would "have to ask for their discharge "; that they could satisfy their union obliga-
tions by paying a $25 initiation fee and $5 monthly dues as required by the Union's
constitution ; and that "because of what transpired" he would forget all past dues,
"start off with a clean sheet," and give them 30 days "to either become a member
or join Local 803." 6
Thereafter , in June and July, Kalisky ( sometimes accompanied by other union
agents ) visited the plant at frequent intervals , urging employees to join Local 803,
to sign authorization cards and to pay the required initiation fees and dues, and
warning them that if they failed to do so they would lose their jobs. Kalisky pleaded
with the girls to give him ",a break" because he was new on the job and had a
family to support . On one occasion (June 28 ), Valente, an official of a Teamsters
local, met with Duffy (Local 149's organizer ) and sought to prevail upon the latter
not to give Kalisky a hard time. Valente pointed out that Kalisky "was trying to
correct the situation that some other representative of 803 had loused up." In the
course of the conversation , Valente reminded Duffy that Local 803 had a union-
security agreement with Zoe and that unless the employees joined , they would be
fired. Duffy replied , "I've got the people and if you try to fire one of them, we'll
pull the shop." 7
There is sharp testimonial conflict as to whether Kalisky in his solicitation of the
employees in June and July had told them they had to sign Local 803 authorization
cards to become union members and to retain their jobs. The card in question
required the signatory to list his name, address , the type of work performed, and
place of work . On the face of the card , before the space for signature, there
appeared the following inscription: -
I hereby accept membership in Local No. 803 and of my own free will
hereby authorize Local No. 803 its agents or representatives to act for me as
collective bargaining agency in all matters pertaining to rates of pay, wages,
hours, or other conditions of employment.
I also agree to abide by the constitution and by-laws and the rules and
regulations of the Union and its International Union.
On the reverse side of the card , there was a checkoff authorization clause with
another space for date and signature.
Although Kalisky admitted asking employees to sign the cards, he denied telling
them that they had to join or sign a card to avoid being fired . Kalisky testified,
"I told them, 'I -am leaving the cards, just in case any of them would desire to
become members or join our local.' I said, 'I 'm giving it to you because I don't
want it ever to be said that you were never approached to join the union .' " Four
of the Charging Parties (De Giacomo , Pisarra, Struffolino , and Weber ) insisted
that Kalisky did tell them they had to join the Union and sign cards. De Giacomo,
and Pisarra stated that Kalisky told them that unless they signed they would be
fired or would lose their jobs. There is no question in my mind , and I find, that
Kalisky told employees that they would have to join Local 803 and sign authoriza-
5 Romano thereafter ( on July 3 ) resigned his position as an officer of the Union.
9 The foregoing findings are based primarily on the testimony of Kalisky , in part cor-
roborated by several General Counsel witnesses General Counsel 's witnesses either could
not recall all the events at the June 21 meeting or deliberately withheld them. It is
significant , as hereafter indicated , that the substance of Kalisky 's remarks recited above
is also incorporated in his letter to Zoe, dated July 24.
7 The foregoing findings respecting the June 28 encounter are based on the composite
testimony of Duffy and Kalisky.
ZOE CHEMICAL CO., INC. 1007
tion cards to retain their jobs .8 The employees , however, refused to join Local 803
and sign the cards , and adhered to their membership in Local 149 . Obviously
resentful of Local 803's failure to service the shop before the advent of Local 149,
the Charging Parties wanted to have nothing to do with that Union . Thus, De
Giacomo testified , "we ignored it [the card solicitation ]." Struffolino testified, "I
just didn 't pay any t..tention to him [Kalisky ]." Weber did not even ask to see the
card handed her . It was stipulated at the hearing that none of the Charging Parties
tendered any dues and initiation fees until at least August 30 .9 Local 149 Repre-
sentative Duffy testified he told the dissidents at various meetings that Local 149
"would keep up the pressure to have Zoe refuse to enforce the union -security
clause," and he indicated that this pressure would result in forcing Local 803 to
take the matter of company compliance with the clause to arbitration.
On July 15, Local 149 filed charges alleging, among other things, that the Com-
pany, in violation of the Act, had refused to recognize it as majority representative
while continuing to recognize Local 803 which did not represent a majority. This
charge was withdrawn by Local 149 with the approval of the Regional Director on
August 2. On July 18, a union deauthorization (UD) petition was filed by an
employee (on behalf of Local 149) seeking to nullify the union-security clause in
Local 803's contract with Zoe, which petition is still pending and undisposed of.
C. Local 803's July 24 request of the Company to discharge the dissidents
for refusing to comply with the union-security contract
On July 24, Kalisky wrote the Company:
On June 21 , 1963, at a meeting I advised your employees who had not
complied with the union shop clause of our union contract that we were for-
getting the past non-compliance, that we would start with a clean sheet, let
bygones be bygones, and that they now had an additional 30 days to comply
until the 31st day after June 21, 1963.
At the June 21, 196, meeting I read to them paragraph 2 of the March 5,
1962, contract , as follows:
As a condition of employment all covered employees shall become and
remain members of the Union in good standing on the 31st day after date
of employment.
I further told them that the requirement to become and remain a member
of the Union in good standing would be fully satisfied if on the 31st day after
June 21 , 1963, each of them paid the regular initiation fee of $25 and $5
monthly dues and continued the $5 dues monthly thereafter.
Please be advised that all employees within the bargaining unit who are
employed more than 31 days except : Joel Markowitz, William Hance, Charles
Metz, Max Cohen , Herman Najowitz, Stuart Axelrod , have not complied with
the Union shop clause of the contract . Please fire them immediately, and
advise me.io
The Company posted the letter on its bulletin board , near the timeclock , pursuant
to advice from its attorney, Drimmer , but refused to comply with Local 803's
request to discharge the employees not in compliance with the union -shop clause.
3 Based on the demeanor of Kalisky on the stand as well as the inherent probabilities of
the situation , it was clear that Kalisky's testimony on this point was less than forthright.
I cannot believe that Kalisky, who impressed me as an outspoken and persistent organizer,
humbly told the employees ( as he in effect sought to convey ) that they really did not have
to join the Union or sign cards. I discredit Kelisky's testimony so far as it is inconsistent
with the aforestated findings.
e As noted, infra, the question whether such tender was made on even that date is in
sharp conflict Duffy, the Local 149 organizer , testified that the first time he told the
Charging Parties to offer dues was on August 29
10 Kalisky testified that he had been advised of the Union 's and employees ' rights and
obligations by his attorney , Katz , before the June 21 meeting It is clear that the letter In
question was prepared after such consultation with Katz . It should be noted that the letter
does not specify the names of the particular employees to be discharged at that time The
Company did not produce its payroll records listing the employees in the unit until the
arbitration hearing on August 22 ( presently to be discussed) It was stipulated that sub-
sequent to July 24, the Union Identified the employees Involved and that these included the
Charging Parties herein.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Local 803 's arbitration award requiring Zoe to discharge employees
not in compliance with the union -security agreement
On August 5, Local 803 instituted arbitration proceedings to enforce its union-
shop contract against Zoe . " The contract between the parties provides for resolu-
tion of their differences by binding arbitration and banning strikes and lockouts during
its term . 12 The submission agreement , jointly executed by Local 803 and the Com-
pany, listed the issue as whether "pursuant to the terms of the instant Collective
Agreement between the parties hereto , are certain of the employees of the Employer
obligated to join the Union '1 If so, what shall the remedy be, if any?" After a hear-
ing held on August 22 , attended by representatives of Local 803 and Zoe , 13 Arbitra-
tor Jerome J. Lande handed down his award on August 26 in favor of Local 803,
ruling that the union-security agreement is "clear and succinct ," and directed the
Company to discharge those of the 23 listed employees ( including the 12 Charging
Parties ) "who have failed to join the Union on or before September 3, 1963." 74
During the pendency of the arbitration proceeding (August 5-26 ) Local 803
President Kalisky continued to solicit dues and initiation fees and signed cards from
the employees Toward the end of August (August 26-28) several men, character-
ized by various employee witnesses as "strangers ," appeared in the plant and
engaged in an intensive drive to induce employees to sign up with the Local 803,
warning them that unless they did so they would lose their jobs 15 The employees
persisted in their refusal to join Local 803, to pay any of its dues, and to have
anything to do with that Union.16
11 On the same day, Local 803 filed charges against Zoe , which , as amended on Sep-
tember 9 , alleged that the Company 's refusal " to honor" the union -security clause con-
stituted a violation of the Act By it letter dated October 15, the Regional Director dismissed
the charges , stating that the "refusal by the company to enforce the requirements of your
agreement for union membership as a condition of employment cannot , in circumstances of
this case, be deemed to have constituted an unfair labor practice Further , it does not
appear that the Company violated the Act in any other manner encompassed by your
charges "
is Section 16 of the contract states
Should any dispute or difference arise between the Employer and the Union as to the
meaning , application , performance or operation of any provisions of this agreement,
either the Employer or the Union may give notice to the other of said dispute or dif-
ference, and an earnest effort shall be made promptly to adjust the dispute or differ-
ence. If the matter cannot be adjusted between the parties, then the matter shall be
submitted , at the request of either party , to the New York State Board of Mediation
for the designation of an arbitrator, whose decision shall be final , binding and con-
clusive upon the parties and enforceable in a court of competent jurisdiction The costs
of arbitration shall be shared equally by both parties.
14 Notice of the hearing , as well as other documents in connection with the arbitration
proceeding , were posted on the employee bulletin board , but none of the employees attended
the hearing or sought intervention therein
'4 The arbitrator rejected the Company 's contentions that it was Local 803's function,
not the Company ' s, to enlist the employees as members and, further , that a discharge of the
designated employees ( practically the entire unit ) at its then busy season would con-
stitute economic hardship.
14, General Counsel ' s witnesses estimated that 3 to 10 " strangers " were present Accord-
ing to their testimony , the men were strategically placed at various locations in the plant
in order to enable then to reach employees , were afforded extensive freedom (Including
longer bieak periods ) by Zoe to move about and talk to the employees , and were frequently
seen conversing with Kalisky Only two of the "strangers" were identified by name-
"Nick" and Rivera, the former being quoted as saying lie belonged to the ambulance drivers
union . One witness ( Sidney Deresh ) testified about an altercation he had with "Nick " At
the hearing ruling was reserved on Respondent 's motion to strike all testimony relating
to the activities of the " strangers" on the ground that they were not shown to be agents of
Respondents Payroll records produced by the Company indicate that a Nick Perone , Wilfred
'Rivera , and four other new employees were on the payroll on August 26 and 27. In view
of the ultimate findings made herein , it is unnecessary to pass on the question of Respond-
ent's responsibility for the activities of the "strangers ," and, therefore , on the motion to
strike the testimony.
m On August 23, the Company discharged several employees , which , according to charges
filed by Local 149 on August 29 and September 5, were discriminatory and in violation of
Section 8 ( a) (1) and ( 3). The Regional Director dismissed the charges on October 15
because of insufficient evidence.
ZOE CHEMICAL CO., INC. 1009
E. The alleged dues tender by the Charging Parties on August 30
On August 27, immediately after receipt of the arbitration award , Zoe posted
it on its bulletin board, as it had posted all documents in the arbitration proceed-
ing.17 A day or two thereafter (August 28 or 29), Company President Axelrod dis-
played the award to, the assembled employees, explaining that they would have to
join Local 803 by September 3 or be discharged.
There is an extremely sharp conflict of testimony as to whether the Charging
Parties tendered the dues and fees required by Local 803 on and prior to Septem-
ber 3. The four Charging Parties called by General Counsel uniformly testified that
on August 29 (about 8 or 8:30 p.m.) they met with Duffy in Local 149 's union
hall; that after discussing the arbitration award and Axelrod 's previous admonition
that they would be fired unless they joined Local 803, it was agreed (after a tele-
phone check with Local 149's attorney ) that the employees would tender the
required dues and initiation fees; that they would , however, under no circumstances
sign Local 803 membership cards; that the first dues tender would be made by
employee Struffolino in the presence of all of the Charging Parties during the
lunch period ( 12-12:45 p .m.) the - following day after receipt of their weekly pay;
and that if Local 803 President Kalisky accepted Struffolino's tender, the others
would follow suit and individually offer their money.18 The Charging Parties fur-
ther testified-in minute detail-that in accordance with this plan, during lunch the
next day (Friday, August 30), they grouped themselves near the timeclock and
tendered the dues to Kalisky ; that Struffolino , speaking for the group , told Kalisky
they were willing to pay Local 803 dues ( initiation fees were not mentioned) but
were not legally required and refused to sign Local 803 membership cards; that
Struffolino extended a $5 bill in payment of the monthly dues, which Kalisky
refused unless she also signed a Local 803 card ; and that Struffolino repeated her
statement that although she was under a legal obligation to pay dues , she was not
required to sign the card , to which Kalisky replied that she was "misinformed."
According to the Charging Parties, later the same day , around the 5 p.m. quitting
time, the group again offered to pay dues to Kalisky , reiterating their refusal to
sign cards . Kalisky allegedly rejected the offer with the statement that if they did
not sign the cards , they were fired and need not return to work after the Labor
Day weekend (the next Tuesday).19
Kalisky emphatically denied that the Charging Parties tendered any dues on
August 30 (noontime or later ) insisting that he was not even in the plant that
day. According to his testimony , he was being interviewed by and signing a state-
ment for counsel for General Counsel at the Board 's New York City office at
lunchtime ( around 12 : 30 to 2 p .m.) in connection with pending charges 20 at the
very time the Charging Parties supposedly were tendering dues to him at the com-
pany plant in New Hyde Park , Long Island . Counsel for General Counsel stipulated
that Kalisky was indeed with him and that he took a statement from him on
August 30, but that he (General Counsel ) could not recall the specific time of day
17 At least one of the Charging Parties testified that she ignored the posted award be-
cause she "wanted to have nothing to do with it" since it involved joining Local 803.
18 The testimony of the Charging Parties is corroborated by General Counsel witnesses
Duffy and Hance Bernard O 'Reilley, Nassau County assistant director of labor relations,
likewise corroborated the employees ' testimony as to what transpired at the meeting; he
was apparently unsure about the date of the meeting but stated that after "I have heard
the date August 29th mentioned here [in the hearing room before taking the stand] the
best of my recollection is that it would be latter part of August." Respondents apparently
do not question that a meeting of the nature alluded to did in fact take place , contending
only that if it took place, it was after September 3.
11 General Counsel called Hance and Auld ( the daughter of Charging Party Gagan) in
an attempt to corroborate the testimony of the Charging Parties. According to some of
the testimony , Rivera ( an alleged Local 803 agent ) was present and distributed cards at
the described noontime offer. Gioletti, one of the Charging Parties, was not in the August 30
group, having allegedly left with Struffolino her $5 (before quitting the plant at noon)
to give to Kalisky in the event he accepted Struffolino 's tender.
20 As already noted ( supra, footnote 11), on August 5 Local 803 filed its original charges
against the Company alleging violation of Section 8(a) (1) and ( 3) of the Act through
refusal to honor the union -security contract ; the charges were subsequently dismissed.
257-551-6T-vol . 160-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when this took place.21 Kalisky further testified that shortly before the 5 p.m. quit-
ting time (when the claimed second tender took place) be was in the downtown
office of his attorney, Katz. Katz corroborated his "alibi," testifying that he dis-
tinctly remembered seeing Kalisky at the time in question and explaining in detail
the circumstances why he recalled the particular afternoon visit. Kalisky gave a
detailed account of his whereabouts during the entire day of August 30-including
earlier morning visits to Attorney Katz and to another attorney, Nearing, in con-
nection with- pending litigation. Katz also corroborated Kalisky's testimony con-
cerning his morning visit-purportedly to discuss Kalisky's forthcoming conference
with counsel for General Counsel around noon-but his recollection of this visit
was less definitive than that of the afternoon visit. Although Attorney Nearing
(who handled Local 803's petition to confirm the Union's arbitration award in
court, infia) had no specific recollection of Kalisky's visit to his office that day or
of his signing the document in his presence, the document on its face indicates that
it was executed and acknowledged before him on August 30. Kalisky insisted that
the first time the Charging Parties tendered any dues to him was in September, after
enforcement of the arbitration award by the State court (referred to below), long
after the September 3 deadline set in the arbitration award 22
It is apparent that the conflicting testimony regarding the dues tender of August 30
is irreconcilable However, in view of the conclusions ultimately reached, it is unnec-
essary to resolve this conflict.
F. The events immediately preceding the October 4 and 7
discharge of the Charging Parties
Kalisky continued his attempts to collect union dues and initiation fees and to
secure signed cards in September. He appeared at the plant for this purpose on
September 3, the final day set by the arbitrator for joining Local 803. There is no
credible evidence that any of the Charging Parties offered to pay Local 803's
required dues and initiation fees that day. The credible evidence shows, and I find,
that just before quitting time Kalisky told some of the Charging Parties that they
"needn't bother coming in the next day" to work, and that they would not be paid
(and were fired) because they failed to join or sign Local 803 cards. The next
morning (September 4) Kalisky repeated the substance of these remarks to the'
girls just before they entered the plant. The employees then went to the Local 149
hall, where they discussed the matter with Duffy and Mozzacchi, respectively Local
149's organizer and president, who told them to return to work and talk the matter
over with Company President Axelrod. Axelrod, angry that they had left the plant
without notice, told them to go back to work, reminding them that it was he, not
Kalisky, who did the firing.23
During September, Local 803 filed in the New York State Supreme Court its
petition (purportedly signed by Kalisky on August 30) to confirm and enforce the
August 26 arbitration award The Company gave as its reason for failing to com-
ply with the award the pendency of the UD petition before the Board (i.e., the
deauthorization petition seeking to rescind Local 803's authority to enter into a
2i Counsel for General Counsel entered into this stipulation after (but before formal
Board disposition of) Local 803's appeal from my ruling quashing a subpena requiring
counsel to testify on this matter. Local 803 thereupon withdrew its appeal'
22Kalisky testified that he rejected the September offer of $5 dues by Struffolino be-
cause it was not accompanied by a tender of the $25 Initiation fee and because Struffolino
by then owed 3 months' dues. He also testified that, though not required, he was willing
to accept only 1 month's dues and waive the back dues, provided Struffolino agreed to sign
a dues checkoff authorization to pay the initiation fee by installments-a proposal she
rejected He conceded talking to the Charging Parties individually several times (includ-
ing lunch and quitting time) on August 28 asking them to note the arbitrator's award
but stated that none of the Charging Parties tendered dues or fees at that time
23 The foregoing finding is based on the mutually corroborative testimony of the Charging
Parties, whose testimony is credited in the respects recited Kalisky admitted being at the
plant on September 3, but stated he had no "meeting" with the employees that day He also
admitted returning to the plant the next morning and telling the employees, "This is the
day I have been waiting for" to enforce the arbitrator's award and "to see that they are
dismissed for not paying initiation and dues " Axelrod admitted the substance of the re-
marks attributed to him by the employees as above recited, but disputed the further testi-
mony of the Charging Parties that they had informed him that Kalisky had rejected their
previous dues offers-a testimonial conflict which it is not necessary to resolve.
ZOE CHEMICAL CO., INC. 1011
union-shop agreement). On or about October 1, the court issued its order enforc-
ing the arbitration award and directing the Company to discharge 23 named employ-
ees, including the Charging Parties.
On October 4, Company Attorney Drimmer informed Company Official Kupetz
of the court's order, and advised him to determine which of the employees had not
joined Local 803 and to discharge them in compliance with the court order. Pur-
suant to Drimmer's advice, Kupetz requested the Charging Parties-none of whom
had "joined" Local 803-to meet with him before quitting time. Displaying the
court's order, Kupetz told 11 of the 12 employees then present (Bustos was absent
because of illness) that he was "sorry" but had to let them go because they had not
joined Local 803.24 Bustos was similarly informed of the court order and was dis-
charged on October 7.25
G Conclusions respecting Local 803's alleged Section
(8)(b)(1) and (2) violations
1. Introduction; the issues
Briefly stated, the facts found show that in March 1962, Local 803 and Zoe exe-
cuted a union-security agreement requiring Zoe's employees to acquire member-
ship in the Union after 30 days of employment. For approximately a year before
June 1963, enforcement of the agreement was suspended, Local 803 having stopped
servicing the shop. In the latter part of May and early June the Zoe employees
joined another union (Local 149), which on June 10, filed a petition for an elec-
tion on June 10. On June 28, the Regional Director dismissed this petition on the
ground that there existed a valid collective agreement barring the conduct of an
election.
In the meantime, on June 21, Local 803 President Kalisky served notice on the
employees that he would thereafter enforce the union-security agreement. Acknowl-
edging his union's past dereliction, he promised to correct the situation and fire the
union agent who neglected the shop. Kalisky told the employees that they could
satisfy their union obligation by payment within the next 30 days of the Union's
$25 initiation fee plus $5 monthly dues, waiving back dues. The employees, resent-
ful of Local 803's prior neglect and determined to remain loyal to their new union
(Local 149), refused to have any dealings with Local 803. Kalisky continued to
press for the dues and fees, warning employees that unless they joined Local 803
and signed membership cards they would be fired. Ignoring these admonitions, the
employees neither tendered any moneys nor signed cards, deciding instead to adhere
to Local 149 and to bring pressure on Zoe not to enforce the union-security
contract.
On July 24, Kalisky requested the Company to discharge the noncomplying
employees because of their failure to meet their financial obligations under the
union-security contract-i.e., payment of the union dues and initiation fees. Upon
the Company's failure to comply with this request, Local 803 on August 5 insti-
tuted arbitration proceedings, in accordance with the provision of the collective
agreement requiting differences between the parties to be settled by arbitration.
Though on full notice of the pending arbitration proceeding, neither Local 149 nor
any of the Charging Parties intervened. On August 26, the arbitrator upheld Local
803's contractual right to enforce the discharge of the noncomplying employees,
including the 12 Charging Parties herein, giving them, however, until September 3
(a total of 74 days from Local 803's June 21 initial demand) "to join the Union."
There is sharp testimonial conflict as to whether the Charging Parties tendered
dues on August 30, before the deadline fixed by the arbitrator In any event, how-
ever, Kalisky continued his attempts to collect the dues and initiation fees and
to sign up the employees after Septembei 3. There is no evidence that the Charg-
ing Parties at any time-at the time of the alleged August 30 dues offer or subse-
quently-offered to pay the $25 initiation fees.
23 There is testimonial conflict whether in the course of the meeting the Charging
Parties informed Kupetz that although they refused to join Local 803 they had offered
the dues to Kalisky-a conflict which also need not be resolved.
25 Subsequent to their discharge, some of the Charging Parties filed claims for unemploy-
ment compensation which, after a hearing participated in by all parties Including the
employees, were denied because of "voluntary leaving of employment without good cause."
On appeal, the initial determination was upheld on the ground that the "claimants refused
to meet one of the conditions of their employment," namely, joining the Union in accord-
ance with the collective-bargaining agreement
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issues, some apparently novel, here presented are:
(1) whether Local 803 could lawfully demand compliance with the union-security
agreement after the long lapse of its nonenforcement;
(2) whether under the Board's Union Starch doctrine (87 NLRB 779), the non-
complying employees were excused from tendering Local 803's periodic dues and
uniform initiation fees between the time of the Union's request therefor (June 21)
and its request for discharge (July 24) because the Union also requested that they
sign membership cards;
(3) whether by invoking arbitration against Zoe to force it to discharge the
employees delinquent in their dues and initiation fee obligations under the 30-day
union-security agreement, Local 803 thereby waived the employees' delinquency and
was bound by the arbitral award affording the employees 74 days within which "to
join the Union";
(4)whether the Charging Parties made a full and complete tender of the required
dues and initiation fees by September 3, the deadline set by the arbitrator;
(5) whether Local 803's willingness to accept belated tenders subsequent to Sep-
tember 3, operated as a waiver of the Charging Parties dues and fees delinquency;
(6) whether, in any event , Local 803's requests to discharge the Charging Parties
were motivated by their activities on behalf of a rival union rather than their arrear-
ages in financial obligations.
2. Applicable principles
Section 8(a)(3) of the Act, while forbidding discrimination to encourage or dis-
courage union membership , specifically authorizes unions and employers to enter
into agreements requiring "as a condition of employment membership . on or
after the thirtieth day following the beginning of . . . employment .. .. One of
the provisos to the section states that "no employer shall justify any discrimination
against an employee for nonmembership in a labor organization . if he has
reasonable grounds for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the periodic dues and the
initiation fees required as a condition of acquiring or retaining membership." Cor-
respondingly , Section 8(b)(2) makes it an unfair labor practice for a union to
cause or attempt to cause an employer 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 initia-
tion fees uniformly required as a condition of acquiring or retaining membership."
In The Radio Officer's Union of the Commercial Telegraphers Union [Bull
Steamship Co.] v. N.L.R.B., 347 U.S. 17, the Supreme Court made clear the reason
why Congress departed from the general statutory scheme of forbidding discharges
for union nonmembership where the discharge is based on nontender of the dues
and initiation fees required by a valid union-security contract. It stated that "Con-
gress recognized the validity of Union's concern about `free riders,' i.e., employees
who receive the benefits of union representation but are unwilling to contribute
their share of financial support to such union , and gave unions the power to con-
tract to meet that problem while withholding from unions the power to cause the
discharge of employees for any other reason" (id. at 41). In General Motors Cor-
poration , Packard Electric Division , 134 NLRB 1107 , the Board , in giving effect to
this congressional intent, emphasized that timeliness of tender of the required fees
and dues is of paramount consideration . In that case the Board abandoned the rule
previously enunciated in Aluminum Workers International Union, Local No. 135,
112 NLRB 619, that it was unlawful to discharge, or cause the discharge, of an
employee delinquent in his dues and fees, so long as he tendered them before actual
discharge . In holding that a union may insist on the discharge of a delinquent
employee after requesting his discharge, even where the employee subsequently ten-
ders his dues before discharge, the Board explained (General Motors, supra,
1109):
We believe . . . that the application of the Aluminum Workers rule is at
odds with the congressional purpose of allowing parties to collective-bargaining
relationships to enter into and effectively enforce union-shop agreements requir-
ing membership in the union as a condition of employment. For, as illustrated
by the circumstances of this case , there can be little if any union security if
dissident members can frustrate the orderly administration of lawful collective-
bargaining agreements by delaying payment of dues and fees they are lawfully
ZOE CHEMICAL CO., INC. 1013
obligated to pay until the last minute before their actual discharge. We shall
therefore no longer apply the Aluminum Works rule when the tender occurs
after a lawful request, but shall in all such cases look to the record to deter-
mine the real reason for the parties' subsequent conduct.
See also Acme Fast Freight, Inc., 134 NLRB 1131. The General Motors rule was
in effect a reinstatement of the Chisholm-Ryder doctrine (94 NLRB 508), applied
by the Board before Aluminum Workers. In holding that the employees' dues delin-
quency in that case was not cured by his belated tender before discharge, the Board
stated that any other interpretation "would materially detract from the substance of
union-security agreements which Congress vouchsafed to unions and would leave
individual employees free to ignore an important condition of membership, which
unions are permitted to impose " Chisholm-Ryder, supra, 510. In addition, the
Board observed, "It is worthy to note that membership in a labor organization,
being contractual in nature, contemplates the faithful performance of membership
obligations imposed by the organization's constitution and bylaws in the manner
therein provided" (id. at 510, footnote 6).
3. The effect of Local 803's nonenforcement of the union-security
agreement prior to June 1963
As noted, during the period here involved a union-security contract was in effect
between Local 803 and Zoe under which Zoe's employees, including the Charging
Parties, were obligated to secure membership in Local 803 as a condition of employ-
ment. While Local 803 had not enforced the union-security contract and, indeed,
had failed to service the shop for over a year, General Counsel maintains-cor-
rectly in my opinion-that this factor in itself did not estop the Union from enforc-
ing it in the future. This is particularly true where, as here found, the Union after
acknowledging its past laxity, gave the employees full notice of its intention to cor-
rect the situation, made no attempt to collect back dues, and gave the employees a
full 30-day period in which to meet their initiation fee and dues obligations. Under-
standably, the employees, neglected by Local 803, sought affiliation with another
union (Local 149), but Local 803 continued to be the employees' statutory repre-
sentative by reason of its 3-year contract with Zoe and Local 803 could (pursuant
to this contract) rightfully exact its periodic dues and initiation fees and demand
the discharge of those failing to make payment thereof after 30 days of employ-
ment. "When an individual accepts employment with a company which is party to
a union-security agreement, he is not free to choose whether he desires to join the
union . Nor does he have a voice in the selection of his bargaining representative.
He must become a member of the union currently representing the other employ-
ees, as a condition of his continued employment." N.L.R.B. v. Hotel, Motel and
Club Employees' Union, Local 568, AFL-CIO [Philadelphia Sheraton Corp.], 320
F.2d 254, 258 (C.A. 3).26
The record shows, as found, that on June 21 Kalisky (Local 803's president)
advised the employees, including the Charging Parties, of their obligations to com-
ply with the union-shop provision. All of them were afforded a full 30 days there-
after to tender Local 803's $25 initiation fee and $5 monthly dues. Admittedly,
none of the Charging Parties paid or tendered the initiation fee and dues within
the 30-day period; even according to the Charging Parties' version they made no
tender until August 30, long after Local 803's July 24 request for their discharge
for nonpayment. It follows that the Charging Parties became vulnerable to dis-
charge on July 24 unless, as General Counsel claims, they were excused from ten-
der because: (1) Local 803 unlawfully conditioned membership and employment
on the signing of authorization cards, (2) Local 803 extended the period during
which the employees could satisfy their financial obligations by invoking arbitra-
tion against Zoe after the latter failed to comply with the discharge request; and
(3) Local 803 engaged in other conduct by which it waived or forfeited its right
to collected membership dues and initiation fees prior to July 24.
^ It will be recalled that on June 28 (almost a month before Local 803's discharge
request) the Regional Director dismissed Local 149's representation petition, holding that
a valid collective-bargaining agreement existed between Local 803 and the Company.
Although subsequently (July 181 a deauthorization petition was filed seeking to nullify the
union-security agreement no action has been taken thereon
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Applicability of the Union Starch doctrine
I have already found that Kalisky, though informing the employees on June 21
that they could satisfy their union obligations by paying the $25 initiation fees and
$5 monthly dues , thereafter ( including the 30-day period after June 21) also told
them that they would have to sign membership cards in order to avoid discharge.
General Counsel , relying on Union Starch & Refining Company ( Grain Processors'
Independent Union, Local No. 1), 87 NLRB 779, enfd. 186 F.2d 1008 (C.A. 7),
contends that one of the conditions to membership and job retention-card sign-
ing-was unlawful, thereby rendering the Union 's request for discharge unlawful.
In Union Starch the question before the Board was "whether an employee who
tenders to a union holding a valid union -shop contract an amount equal to the
initiation fees and accrued dues thereby brings himself within the protection from
discharge contained in the provisos of Section 8(a) (3) and in Section 8 (b) (2)" of
the Act ( 87 NLRB at 781 ). The three employees in that case tendered the required
fees and dues but the union rejected the tender because the men refused to attend
a union meeting at which they were to be voted upon , take an oath of loyalty to the
union, and pay 2 months ' dues in advance . The Board held that since the employees
"were willing to comply with the only term and condition for membership " required
by the statute-"the tender of the periodic dues and the initiation fees uniformly
required"-the employees were protected from discharge ( id. at 785 ). In uphold-
ing the Board's finding , the Seventh Circuit Court agreed with the Board that
"employees who request union membership and tender initiation fees and dues, but
fail to comply with other union -imposed conditions for acquisition of membership,
are protected by the Act from discharge under the terms of a valid union-security
agreement ." ( Union Starch , 186 F.2d at 1010.)
In my view , Union Starch is not here applicable . Here it is conceded that the
Charging Parties did not tender the periodic dues and initiation fees uniformly
required for membership , during the first 30 days of their employment after request
therefor had been made by Local 803. Indeed, as the record abundantly shows
and employees themselves testified, the Charging Parties wanted nothing to do with
the contracting union during this period, ignored the cards handed to them, and
studiously avoided Local 803's representatives . Thus, unlike Union Starch, the
Charging Parties here demonstrated that they "were entirely unwilling to become
members" on any basis whatsoever ( 87 NLRB at 785).
I believe that the instant case is also distinguishable from United Brotherhood
of Carpenters and Joiners of America , Millmen's Local 824 AFL-CIO (B-unswick-
Balke-Callender ), 115 NLRB 518. There a Board majority held that a union ille-
gally caused the discharge of an employee because he refused to attend a meeting
to be initiated into membership . The majority pointed out that the employee had
demonstrated willingness to meet his financial obligations to the union by actually
paying his $25 initiation fee, that the dues (which he had not paid or tendered)
were not due and payable until after initiation at the meeting , that the union made
it crystal clear that it would not be satisfied with anything but initiation , and that
under the circumstances tender of the dues would have been "futile" and there-
fore unnecessary . In the present case , the employees made no payment or tender of
fees or dues before the request for discharge and there is no evidence that tender
would have been futile. Under the circumstances , it would seem that it was incum-
bent on the Charging Parties at least to make an effort to test Local 803 's willing-
ness to accord them membership by tender of the requisite initiation fees and
periodic dues and thus to demonstrate that they were not "free riders," unwilling
to pay for their ride ( Union Starch , 87 NLRB at 786 ). Cf. Member Murdock's dis-
sent in United Brotherhood of Carpenters, supra, 115 NLRB at 524-526.
In any event, it appears that the cards Local 803 solicited required the signatory
to do nothing more than to designate the Union as his majority representative (a
status the Union already enjoyed by reason of its collective agreement with the
Company ) and to abide by the Union's constitution and bylaws (which appears
to impose on employees no more than payment of a $25 initiation fee and $5
monthly dues as obligations of membership ).27 From all that appears, the signing
r, There is no evidence that any representative of Local 803 had requested any employee
to sign the checkoff authorization clause (for which a separate signature was requested on
the reverse side of the card) during the period here under consideration, i.e., prior to
July 24. It was not until sometime in September that Kalisky for the first time mentioned
the checkoff authorization. ( See supra, footnote 22.)
ZOE CHEMICAL CO., INC. 10 15
of cards entailed a mere formulism indicating the employee's entrance into the
required membership with payment of his financial obligation. The requirement to
sign cards was purely incidental to the Union's right to collect dues and fees. Cf.
General Motors Corp., 134 NLRB 1107, 1117; Stackhouse Oldsmobile, Inc., 140
NLRB 1239, 1241. This case is therefore distinguishable from others where the
union conditioned membership and employment upon payment of fines and back
dues,28 or participation in union activity such as picketing,29 or compliance with
other internal rules of membership.30
For the foregoing reasons, I am of the opinion that the Union Starch doctrine
is not here applicable and that the Charging Parties were not excused from ten-
dering the periodic dues and initiation fees demanded by Local 803, notwithstand-
ing the Union's contemporaneous request that they execute authorization cards.
5. Local 803's alleged waiver of its demand for discharge of dues delinquents
by invoking arbitration against the Company; the binding effect of the arbitrator's
award
General Counsel's contention that the employees' time for tender of the required
initiation fees and dues was extended by reason of the Union's invocation of
arbitration presents an apparently novel point. It will be recalled that upon the
Company's failure to comply with the Union's July 24 request to discharge the
delinquents, Local 803 submitted to an arbitrator the issue whether the employees
were required to comply with the union-shop clause, and the Union's remedy, if
any, for their failure to do so. The arbitrator upheld Local 803's contractual
right to require the Company to discharge the noncomplying employees. However,
he sua sponte fixed September 3 as the deadline by which the employees must "join
the Union," thereby allowing or purporting to allow the employees 74 days (from
the Union's initial June 21 request) to pay the already overdue periodic dues and
initiation fees in order to avoid discharge 31 General Counsel urges that Local 803,
having submitted the indicated issue to arbitration without "restriction" thereby
"tacitly agreed to whatever remedy the arbitrator deemed appropriate including an
extension of time, and waived both its initial demand of July 24 and the demands
uttered during the arbitration proceedings." However, Local 803 maintains that it
is unrealistic to spell out of its invocation of the arbitration proceeding such a
"waiver," which implies "the voluntary surrender or relinquishment of some
known right, benefit or advantage." (See Black, Law Dictionary (4th ed. 1951).)
The Union contends that its contract with Zoe banned strikes and lockouts, estab-
lishing arbitration as the exclusive method by which the parties could settle dis-
putes; that by resorting to arbitration under these circumstances it did nothing
more than abide by the required procedure to compel company compliance with
its contractual obligation to discharge delinquents; and that the arbitrator's deter-
mination could not operate to alter its statutory rights under the 30-day union-
security clause.
In my view, the question of whether the arbitrator's award should be honored by
the Board does not turn on strict principles of waiver. Rather, the question here is
whether the Board will give "hospitable acceptance to the arbitral process" in recog-
nition of "the common goal of national labor policy of encouraging the final
adjustment of disputes [by arbitration], `as part and parcel of the collective bar-
29N.L.R.B. v. International Association of Machinists, Local No. 504 (Westinghouse
Electric Corp.), 203 F.2d 173 (CA 9) ; The Electric Auto-Lite Company, 92 NLRB 1073,
enfd. 196 F.2d 500 (C.A. 6) ; The Leece-Neville Company, 140 NLRB 56, enfd as modified
330 F.2d 242 (C A. 6).
29 Eclipse Lumber Co., Inc, 95 'NLRB 464, enfd 199 F 2d 684, 685 (C A 9) ; Local 450,
International Union of Operating Engineers (Tellepsen Constr. Co ), 122 NLRB 564, 567,
enfd. as modified 281 F.2d 313, 316 (C A 5).
60 Philadelphia Iron Works, 103 NLRB 596, enfd 211 F 2d 937 (C A 3) Local 50,
American Bakery & Confectionery Workers Union, AFL-CIO (Ward Baking Co ), 143
NLRB 233
31 The arbitrator did not indicate what he meant by his requirement that the employees
"join the Union " Local 803 contends that the arbitrator's award required signing of
membership applications, whereas General Counsel contends that the award may properly
be construed merely to require tender of dues and initiation fees. I accept General Counsel's
-construction of the award.
10 1 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining process."' International Harvester Company, 138 NLRB 923, 927, 929,
enfd. sub nom. Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7). This, in turn, depends
on such factors as the nature of the controversy, the fairness of the proceeding,
and whether the award is repugnant to statutory policy.32 The Board will "withhold
its undoubted authority to adjudicate alleged unfair labor practice charges involving
the same subject matter, unless it clearly appears that the arbitration proceedings
were tainted by fraud, collusion, unfairness, or serious procedural irregularities or
that the award was clearly repugnant to the purposes and policies of the Act."
International Harvester, supra, 138 NLRB at 927.
The arbitration submission here-involving contractual rights paralleling statutory
rights-was not uncommon In fact, in International Harvester, as here, the ques-
tion presented in arbitration concerned the union's right to compel the employer
to fulfill the contractual obligation to discharge an employee for alleged failure to
meet financial obligations to the union under a union-security agreement. There
the Board, without going into the merits of the unfair labor practice charges before
it, gave effect to the award upholding the union's right to require discharge of the
noncomplying employee, even though the award-based on construction of the
union-security contract-also had impact upon statutory rights and obligations,
noting that the arbitration was fairly conducted and the award not clearly repugnant
to the policies of the statute. There is no showing of fraud or irregularity in the
conduct of the arbitration proceedings in this case 33 As I see it, the sole question
here is whether the Board should honor the award because, by extending the delin-
quent employees' time for payment of union dues and initiation fees from 30 to 74
days from the date of the Union's initial (June 21) request therefor. it contravenes
statutory policy relative to the enforceability of union-security agreements.
I have already alluded to the Board' s emphasis in General Motors, 134 NLRB
1107, upon the desirability of requiring employees to promptly meet their finan-
cial obligations in the interest of sound and effective administration of union-
security contracts 34 The Board there enunciated the principle that a union's right
to require discharge of delinquents accrues with the employee's default in pay-
ment and is not subject to defeasance through subsequent belated tender before
discharge. If, as Local 803 contends, invocation of arbitration to force employer
compliance with union-security provisions could automatically suspend or toll
accrued obligations to pay dues and fees, an employer could indefinitely delay ful-
fillment of, if not frustrate, this essential employee obligation See IAM (Nero
Britain Machine Co ), supra, 420. This could, indeed, as the Union points out,
impair "industrial stability" (Producers Transport, supra, 441), a' paramount
objective of the Act.
The Union's contentions only point up the constant necessity for accommodat-
ing or adjusting the balance of seemingly competing statutory policies in determin-
ing whether the Board should give effect to an arbitration award. Although, the
"function of striking that balance to effectuate national labor policy is often a
difficult and delicate responsibility" (N.L.R.B. v. Truck Drivers Local Union No.
449, Teamsters, 353 U.S. 87, 96), it is not one which is unusual even in other areas
of Board competence. The policy of promoting effective union-security agreements
may in certain circumstances indeed outweigh the policy of "hospitable acceptance"
32 See International Harvester, supra; Spielberg Manufactu,ing Company, 112 NLRB
1080, 1082 ; Monsanto Chemical Company, 130 NLRB 1097 ; I Oscherwatz and Sons, 130
NLRB 1078; Dubo Manufacturing Corporation, 148 NLRB 1073.
93 General Counsel's suggestion that the arbitration was "part of a joint scheme" by
Local 803 and Zoe to give official sanction to their collusive attempt to rid themselves of
dissident employees is based on sheer speculation and suspicion and is totally unwarranted
as shown infra, footnote 38 It is noted that General Counsel relies on the award made
in that very proceeding which he for other purposes regards as tainted, to support his
position as to timeliness of dues and initiation fee tenders.
as See also N L R.B. v Technicolor Motion Picture Corporation, 248 F 2d 348 (C.A. 9) ;
The International Association of Machinists and Lodge 1021, IAM (New Britain Machine
Co.) V. NL.R.B., 247 F.2d 414, 420 (C.A. 2) ; Producers Transport, Inc. v. N.L.R.B., 284
F.2d 438, 441-442 (C.A. 7)
ZOE CHEMICAL CO., INC. 1017
of arbitration awards In the final analysis, "each case must rest on its own bottoms."
(Denver-Chicago Trucking Company, Inc., 132 NLRB 1416, 1421), the overriding
consideration being whether "the public interest desires it [ the Board ] to act"
(N.L.R.B. v. Newark Morning Ledger Co., 120 F.2d 262 (C.A. 3), cert. denied 314
U.S. 693) see Precision Fittings, Inc., 141 NLRB 1034, 1040. Upon close considera-
tion of the circumstances of this case , I conclude that in balance the policy of hon-
oring arbitration awards should prevail.
To begin with, I cannot ignore the fact that Local 803 had neglected the employ-
ees in the unit an entire year , during which the Union did nothing to serve the
industrial stability which it now espouses . Moreover, I cannot overlook the fact that
it was the Union's neglect that engendered the Charging Parties' antagonism
toward it , prompting their dissident activity and stubborn refusal to deal with it
and to defray their financial obligations toward it . Although unarticulated by him,
I cannot assume that the arbitrator failed to take these circumstances into consid-
eration in extending the employees ' time to pay the required dues and fees beyond
the 30-day period within which those obligations were due. The 74 days he gave the
employees for this purpose was the arbitrator 's response to the equities of the
situation-equities he might properly take into account in fixing "the remedy." It
is generally recognized that an arbitrator has broad authority "to completely resolve
the dispute" submitted to him , and this includes formulation of the remedy, par-
ticularly where , as here, the submission agreement placed no restriction on his
power to do so. See Local 2130, IBEW, AFL-CIO v. Bally Case & Cooler, 232
F Stipp. 394 (D.C.E D.Pa ) " `The parties expect that his judgment of a particu-
lar grievance will reflect not only what the contract says but, insofar as the col-
lective bargaining agreement permits,' . other factors of practical consequence."
Sinclair Refining Company v . N.L.R.B., 306 F .2d 569, 577 (C.A. 5), quoting from
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582.
I conclude that whatever might be said for giving effect to the statutory policy
of effective administration of union-security agreements where a union by its
conduct advances such policy, this is not such case. In the particular circum-
stances of this case , effectuation of the statutory policy of honoring arbitration
awards would appear to predominate . Accordingly , I conclude that, in accord-
ance with the arbitration award, the Charging Parties were immunized from dis-
charge in the event that they made valid payment or tender of the Union's
required dues and initiation fees on or before September 3, the date fixed for such
purpose in that award.
6. The alleged dues tenders before September 3, and the effect of Local 803's
willingness to accept subsequent tenders
The question whether the Charging Parties tendered the required dues and initia-
tion fees on and before September 3, the deadline fixed by the arbitrator , presents
a factual issue. As noted previously, the testimony of the four Charging Parties
called by General Counsel that they offered to pay their financial obligations both
at lunchtime and quitting time August 30, is sharply disputed by Local 803 Presi-
dent Kalisky , who testified that he was not present in the plant ( in New Hyde
Park , Long Island ) that day but was being interviewed by counsel for General
Counsel ( at the Board's Manhattan office ) at lunchtime and was consulting with
the Union 's attorney (at the latter 's Manhattan office ) at quitting time. I need not
resolve these testimonial conflicts since I am satisfied that even if I credited the
employees ' testimony , their August 30 tenders were incomplete for reasons to be
shown.
Apart from the fact that at least 2 months' dues had accrued to the Union by
August 30 , while the employees allegedly offered only 1 month's dues on that date,
even the Charging Parties did not claim that they offered to pay the Union's $25
initiation fee at that ( or any other ) time. I cannot accept General Counsel's con-
tention ( based on the testimony of some of the Charging Parties ) that they were
ignorant of the Union 's dues and fees requirements . The record shows, as already
found , that the employees were told and placed on clear notice of these require-
ments. Thus, in his first meeting with the employees on June 21, Kalisky informed
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that the Union's initiation fee and monthly dues were $25 and $5. The letter
of July 24, posted on the employee bulletin board, likewise stated that union mem-
bership "in good standing would be fully satisfied if on the 31st day after June 21,
1963, each of the [employees] paid the regular initiation fee of $25 and $5
monthly dues and continued the $5 dues monthly thereafter." At least two of the
Charging Parties testified that they heard of the Union's dues requirements from
others who had signed up with the Union. The record indicates that at least three
of the original dissidents who joined Local 803 prior to September 3, paid the $25
initiation fee.35 Moreover, it seems unlikely that Hance (leader of Local 149's
organizational drive), from whose pay monthly dues continued to be deducted
throughout the period here involved, was unaware of and failed at any time to
apprise his coworkers of Local 803's dues and fees structure. Finally, the Charging
Parties were part of an organized dissident group led by an established presumably
knowledgeable rival labor organization, and were even advised by legal counsel.
Under these circumstances, I am unable to agree with General Counsel's conten-
tion that Local 803 took unfair advantage of the employees' alleged ignorance of
or failure to comply with unknown requirements. Cf. N.L.R.B. v. Hotel, Motel and
Club Employees' Union, Local 568, AFL-CIO, 320 F.2d 254, 258 (C.A. 3);
Philadelphia Sheraton Corporation, 136 NLRB 888, 896.
General Counsel also contends that even if the Charging Parties did not make
proper tenders on August 30, the record establishes that Kalisky expressed his will-
ingness to accept belated tenders even after September 3; 36 that Kalisky, however,
accompanied his requests for dues and fees (after as well as before September 3,
including August 30) by demands that the employees also sign membership cards
and, on one occasion, checkoff authorizations; and that the Charging Parties there-
fore were thereby excused from making further tender. On the other hand, Local
803 contends that it should not be penalized for "lean[ing ] backwards in an
attempt to prevent the employees involved from losing their jobs," urging that its
actions were motivated only by forebearance toward delinquents.
The Board has on a number of occasions held that a union "should not be penal-
ized for `laudable leniency' with respect to collection of dues," pointing out that
the failure to treat all delinquents alike does not necessarily bar invocation of the
union-security clause against particular individuals. Special Machine and Engineer-
ing Company, 109 NLRB 838, enfd. 222 F.2d 429 (C A. 6). See also North Amer-
ican Refractories Company, 100 NLRB 1151, 1155 ("Nor 'does the fact that
Respondents have previously permitted delinquent members . . . additional days
to pay dues by a liberal application of their union-security clause mean that they
were thereafter required to extend the same leniency to all delinquent members
as a fixed obligation of law."). The Board has cautioned, however, that a union's
unequal treatment of delinquents must be exercised in good faith and not as a pre-
text for unlawful conduct such as eliminating employees for rival union activity.
Special Machine and Engineering Company, supra. See also N.L.R.B. v. Shear's
Pharmacy, Inc. and Retail Drug Employees' Union, Local 1199, 327 F.2d 479
(C.A. 2).
As found infra, the record presented herein does not support a finding that Local
803, when or after it started to enforce the union-security agreement in June,
singled out the Charging Parties for reprisal because of their rival union activity,
or that the Union's request for their discharge (and the Employer' s compliance
with that request) was motivated by unlawful considerations. Under all the cir-
cumstances , particularly since the Charging Parties never tendered the required
fees, I conclude, for the reasons previously noted (supra, section G, 4) that it was
incumbent on the employees to tender the accrued initiation fees and dues and
thereby to test the Union's willingness to accept them in fulfillment of the condition
of their tenure under the contract. For the same reason , the Charging Parties were
not relieved of the necessity of tendering both initiation fees and dues because
-"The dissidents in question are Coyne, Ingman, and Angrisano, who signed membership
applications on August 26 and 30 and September 3, respectively.
"General Counsel does not claim that the Charging Parties actually tendered dues on
any date other than August 30, nor initiation fees at any time.
ZOE CHEMICAL CO., INC. 1019
Kalisky had once (in the middle or at the end of September) coupled acceptance
of payment upon the employees' willingness to sign checkoff authorizations. It is
to be noted that this request was made when the employees were already delinquent
and in default at least as regards the requested initiation fees. See General Motors
Corp., 134 NLRB 1107, 1117, holding that in the circumstances of that case it was
not improper for the union to require employees to sign checkoff authorizations
in view of their dues delinquency. "The checkoff requirement . . . was merely
incidental to the [ Union 's] right to timely receipt of dues and . . . such measure
was both reasonable and necessary to a fair administration of the contract ... .
(134 NLRB at 1117.)
7. The claim that Local 803 enforced the union-shop contract as a pretext to dis-
criminate against the Charging Parties for engaging in rival union activities
General Counsel alleges that in any event Local 803 invoked the union-security
agreement against the Charging Parties and caused their discharge not because of
the employees' arrears in dues and initiation fees but as a pretext to discriminate"
against them because of their activities on behalf of a rival union, Local 149. In
support of this position, General Counsel alleges that the 12 Charging Parties were
members of the dissident group which encompassed nearly all of the employees in
the unit in June 1963; that the group "became a constant source of annoyance and
irritation to Kalisky and Local 803," rebuffing their efforts to have them join Local
803; that Local 803 resented Local 149 representative's (Duffy's) attempts "in all
ways possible to put pressure on the Respondents . constantly harassing
Respondents in his efforts to protect the employees' jobs"; and that "Local 803
invoked the union-security clause only against members of the dissident group."
In my view the record as a whole fails to support General Counsel's contentions,
and I so find. I have no doubt that Kalisky resented the rival activities of the dissi-
dent group, including those of the Charging Parties-a reaction not unnatural in
interunion rivalry. But the record shows, and I find, that Kalisky's primary concern
after invoking the union-security clause in June was the employees' failure to com-
ply with that clause, and not the dissident activity. In his initial talk with the
employees (June 21) Kalisky told them that compliance with this agreement could
be satisfied by payment of the current dues and initiation fees. Similarly, in his ini-
tial request to the Company (July 24) to discharge the defaulting employees gave
nontender as the only reason for the request. There is no evidence that Kalisky took
any retaliatory measures against the dissidents who satisfied their financial obliga-
tions to Local 803. Thus, Hance, the leading spirit of the dissident group and the
initiator of Local 149's drive, who paid his dues, worked without molestation.37 Sim-
ilarly, Kalisky accepted dues and initiation fees from at least three other dissidents
and these, too, remained in Zoe's employ. There is no reason to believe that the 12
Charging Parties would have been treated differently had they likewise made pay-
ment as required by the union-security contract.
Accordingly, I find that General Counsel failed to meet the burden of establishing
that Local 803 invoked the union-security agreement and caused the discharge of
the Charging Parties to punish them for their rival union activity. I conclude that
the record as a whole does not support the allegation in the complaint that in causing
and attempting to cause the discharge of these employees, Local 803 was motivated
by some reason other than their failure to pay the periodic dues and initiation fees
uniformly required as a condition of acquiring membership or retaining member-
ship, in violation of Section 8(b)(2) and (1)(A) of the Act.
H. Conclusion respecting Zoe's alleged Section 8(a) (1) and (3) violations
Having found that Local 803 did not violate Section 8 (b)(2) and (1)(A) by
causing and attempting to cause the discharge of the Charging Parties on some
ground other than their failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership , it follows
37 fiance quit the plant of his own accord in November 1963. There is no evidence that
his rival union activity was a factor in his decision to quit.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Zoe's discharge of these employees on October 4 and 7 at the insistence and
demands of Local 803 was not violative of Section 8(a)(3) and (1) of the Act.38
CONCLUSIONS OF LAW
1. Respondent Zoe is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Local 803 is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondents have not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint be dismissed.
38 In his attempt to establish that Local 803's instigation and Zoe's effectuation of the
discharges were pretexts to cloak the "real" reason for Respondents' action, 1e, the em-
ployees' rival union activities, General Counsel relies on the testimony of one of the
Charging Parties quoting a company supervisor (Foreman Baptista) as saying on one
occasion that the Company had paid the Union $2,000 "to get lost", he also relies on the
testimony of other employees quoting company officials Axelrod or Kupetz as saving on
another occasion that they had "a special arrangement with the Union" whereby the Com-
pany and the Union assured each other that neither would "bother" the other Based on
the entire record, including the comparative demeanor of the witnesses, I credit the denials
of Kupetz and Axelrod that they at any time told any employee that such arrangement
existed, and that they at any time offered a $2,000 bribe to the Union "to get lost " Further-
more, I credit Axelrod's testimony that immediately after learning of the rival organiza-
tional activities of Locals 149 and 803 (through the filing of Local 149's petition for
representation on June 10) he contacted his attorney (Drimmer), that he received instruc-
tions from him to maintain strict impartiality, and that the Company then adhered to
these instructions. There is nothing in the record even suggesting company hostility to-
ward, and interference with, the dissidents' rival union activity. In fact, General Counsel's
own witnesses Fiance and Deresh adverted to incidents in which company official Kupetz
reprimanded and chased away Local 803 Agent Kalisky when the latter allegedly "bothered"
them and interfered with their work. Nor (lid the Company take any reprisal against the
dissidents when they left in unison on September 4 (without notice to the Company) to
meet with their organizers ; it only docked them for time lost. General Counsel also points
to the fact that the Company sanctioned Kalisky's "constant presence" in the plant to
solicit memberships ; I do not, however, deem this factor significant in view of the union-
security provision in the contract requiring acquisition of membership after 30 days of
employment and the further provision in the contract that Local 803 representatives "shall
be permitted free access . . . for the purpose of observing if the conditions of this agree-
ment are maintained." Finally, General Counsel suggests that the arbitration proceeding
and the subsequent court proceeding to confirm the award were but "part of a joint scheme"
of Local 803 and Zoe designed "to rid themselves of the troublesome employees with the
imprimatur of official sanction " The record does not support this accusation and I reject
It as unwarranted. The facts are that Zoe actively resisted Local 803's attempts to
enforce the union-security agreement both before the arbitrator and before the court, and
that the Charging Parties and Local 149, although fully aware of the pending proceeding
and otherwise represented by counsel, made no attempt to intervene in the proceeding-
at the very least to urge any alleged collusion between Local 803 and Zoe. Moreover,
Local 149's representative, Duffy, in effect admitted at the hearing that his union pressured
the Company not to comply with the union-security clause and thus to force Local 803 to
arbitration.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On June 22, 1965, the Board issued an order remanding this proceeding to Trial
Examiner Samuel M. Singer for the purpose of resolving a credibility issue. It
appearing that proper determination of that issue required reopening of the record
for the receipt of additional evidence, on July 15, 1965, I issued an order directing
a further hearing on the remanded issue. That hearing was held before me on Sep-
tember 8-10, 1965, in Brooklyn, New York. General Counsel and Respondent
ZOE CHEMICAL CO., INC. 1021
Company were represented by counsel; Respondent Local 803 was represented by its
president, Bernard Kalisky. All parties were afforded full opportunity to participate
in the hearing, to introduce evidence relevant to the issue litigated, to engage in oral
argument on the record, and to file briefs. Briefs, received from General Counsel
and Respondent Zoe, have been fully considered.
Upon the record of the entire case, as developed in both hearings, the briefs, and
my observation of the witnesses, I hereby make the following supplemental findings
of fact and conclusions of law:
FINDINGS AND CONCLUSIONS
1. HISTORY OF THE PROCEEDING; THE ISSUE PRESENTED BY THE BOARD'S ORDER
REMANDING THE CASE
The complaint herein alleged that Local 803 violated Section 8(b) (1) (A) and
(2) of the Act by unlawfully enforcing its union-shop contract with Zoe, by reject-
ing timely tenders of dues and initiation fees, and by causing Zoe to discharge the 12
Charging Parties because of their concerted activities on behalf of a rival labor
organization, Local 8-149, International Oil, Chemical and Atomic Workers Union,
AFL-CIO (herein called Local 149). The complaint alleged that Zoe violated Sec-
tion 8(a)(1) and (3) of the Act by discharging the Charging Parties on October 4
and 7, 1963 pursuant to the demands of Local 803.
As found in my decision of September 30, 1964, in March 1962, Local 803 and
Zoe executed a union-security agreement requiring Zoe's employees to acquire
membership in the Union after 30 days of employment. For approximately a year
before June 1963,' enforcement of the agreement was suspended, Local 803 hav-
ing stopped servicing the shop. In the latter part of May and early June, the Zoe
employees joined Local 149. On June 21, Local 803 President Kalisky served notice
on the employees that he would thereafter enforce the union-security agreement
Acknowledging his union's past dereliction, he promised to correct the situation
and fire the union agent who neglected the shop. Kalisky told the employees that
they could satisfy their union obligation by payment within the next 30 days of
the union's $25 initiation fee plus $5 monthly dues, waiving back dues. The
employees, resentful of Local 803's prior neglect and determined to remain loyal
to their new union (Local 149), refused to have any dealings with Local 803.
Kalisky continued to press for the dues and fees, warning employees that unless
they joined Local 803 and signed membership cards they would be fired. Ignoring
these admonitions , the employees neither tendered any moneys nor signed cards,
deciding instead to adhere to Local 149 and to bring pressure to Zoe not to
enforce the union-security contract.
On July 24, Kalisky requested the Company to discharge the noncomplying
employees because of their failure to meet their financial obligations under the
union-security contract. Upon the Company's failure to comply with this request,
on August 5, Local 803 instituted arbitration proceedings , in accordance with the
provisions of the collective-bargaining agreement requiring differences .between the
parties to be settled by arbitration. Neither Local 149 nor any of the Charging
Parties intervened. On August 26, the arbitrator upheld Local 803's contractual
right to require the discharge of the noncomplying employees ,, including the 12
Charging Parties herein , giving them , however, until September 3 "to join the
Union." On August 27, Zoe posted the arbitration award on its bulletin board. A
day or two thereafter (August 28 or 29), Company President Axelrod displayed
the award to the assembled employees, explaining that they would have to join
Local 803 by September 3 or be discharged.
As stated in my Decision of September'.30, 1964, there is an extremely sharp.
conflict of testimony as to whether the Charging Parties, tendered the dues and'
fees required by'-Local 803 on and prior to September 3, the deadline fixed by, the
arbitrator. General Counsel's witnesses (including the Charging Parties called by
him) uniformly testified that on August 29 (about 8 or 8:30 p.m.) the employees
met with Local 149's leadership in its union, hall and agreed on a• plan for 'ten-
dering dues and initiation fees to Local 803. They further testified=in minute
detail-that in accordance with this plan, during lunchtime the' next day (Friday;
August 30), they tendered the dues to Kalisky, that the latter rejected the tender
c_,
i `Unless otherwise stated , all dates herein are to the year 1963
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because the employees would not sign authorization cards for Local 803; and
that later in the day, around 5 p.m. quitting time, they again tendered, but Kalisky
again rejected their tender.
Kalisky emphatically denied that the Charging Parties tendered any dues on
August 30 (noontime or later), insisting that he was not even in the plant that
day. According to his testimony, he was being interviewed by and signing a state-
ment for General Counsel at the Board's New York City office between 12:30 to
2 p.m., in connection with pending charges at or around the time the Charging
Parties supposedly were tendering dues to him at the company plant in New Hyde
Park, Long Island . (Counsel for General Counsel stipulated at the first hearing
that Kalisky was indeed with him and that he took a statement from him on
August 30, but that counsel could not recall the specific time of day when this
took place.) Kalisky further testified that shortly before 5 p.m. quitting time
(when the second tender is alleged to have taken place) he was in the downtown
office of his attorney, Katz. (Katz corroborated this, testifying that he distinctly
remembered seeing Kalisky at the time in question.) Kalisky gave a detailed
account of his whereabouts during the entire day of August 30-including earlier
morning visits to Katz and to another attorney, Nearing, in connection with pend-
ing litigation. Kalisky insisted that the first time the Charging Parties tendered
any dues to him was in September, after enforcement of the arbitration award
by the New York Supreme Court, long after the September 3 deadline set in the
arbitration award.
In my decision of September 30, 1964, I deemed it unessential to resolve the
"irreconcilable" conflicting testimony regarding the August 30 dues tenders. I
found that apart from the fact that at least 2 months' dues had accrued to the
Union by August 30, while the employees allegedly offered only 1 month's dues
($5) on that date, even the Charging Parties did not claim that they offered to
pay the Union's $25 initiation fee at that (or any other) time. Under all the cir-
cumstances, I concluded that it was incumbent on the employees to tender the
accrued initiation fees and dues to test the Union's willingness to accept these in
fulfillment of this condition of their tenure under the contract. However, the
Board's order of June 22, 1965, directing me to resolve the above-discussed credi-
bility issue, appears not to have accepted this view. The Board stated:
The testimony of the charging parties, if credited, would tend to establish
that a tender was made prior to September 3, 1963, which was rejected
because of the charging parties' failure and refusal to sign authorization cards,
and not because of the inadequacy of the amount, and that the employees
had, therefore, satisfied their obligation under the union security clause.
The Board in effect held that under the Charging Parties' version of the events
(if credited), a tender of full dues and fees would have been futile and unneces-
sary since the Union had demanded more than it was legally entitled to, namely,
signed authorization cards. Cf. Union Starch & Refining Company, 87 NLRB 779,
enfd. 186 F.2d 1008 (C.A. 7); United Brotherhood of Carpenters and Joiners of
America, Local 824 ( Brunswick-Balke-Callender), 115 NLRB 518; Eclipse Lum-
ber Company, Inc., 95 NLRB 464, 467, enfd. 199 F.2d 684 (C.A. 9).
In view of the crucial and difficult credibility issue presented , it appeared desir-
able to reopen the hearing to adduce additional evidence bearing upon that tissue.
All parties availed themselves of that opportunity.2
U. THE CREDIBILITY ISSUE INVOLVED IN THE ALLEGED S (b) (2) VIOLATION
A. General Counsel's evidence
1. The Charging Parties' testimony. As related in my Decision of September 30,
1964, the four Charging Parties (Di Giacomo, Pisarra, Struffolino, and Weber)
9At my instance , subpoenas duces tecum were issued directing production at the reopened
hearing of such documents as minutes and records of Local 149 and Local 803 meetings;
diaries , travel vouchers, notes, etc., reflecting Kalisky's movements on August 30; and
documentation bearing on Kalisky's visits to Katz. The Regional Director was requested
to produce files, records, memoranda, etc., relating to the time and duration of Kalisky's
August 30 visit to Spelfogel (counsel for General Counsel at the original hearing) or to
other Board personnel on that date . A subpoena ad testificandum also was issued to ISpel-
fogel, no longer in the Board's employ.
ZOE CHEMICAL CO., INC. 1023
testified at the first hearing 3 that around 8 p.m. Thursday, August 29, they met
with Duffy and other Local 149 representatives in the Local's hall in Albertson,
Long Island; that after discussing the arbitration award and Zoe President Axel-
rod's previous admonition that they would be fired unless they joined Local 803,
it was agreed (after a telephone check with Local 149's Attorney Mozer) that the
employees would tender the required dues and initiation fees; that they would,
however, under no circumstances sign Local 803 membership cards; that the first
dues tender would be made around noontime the next day by employee Struffo-
lino in the presence of all of Charging Parties after receiving their pay; and that
if Local 803 President Kalisky accepted Struffolino's tender, the others would fol-
low suit and make their own payments. The Charging Parties further testified that,
in accordance with this prearranged plan, the next day (Friday, August 30), after
receiving their pay at 12 o'clock, they grouped near the timeclock and tendered
the dues to Kalisky; that Struffolino, speaking for the group, told Kalisky they
were willing to pay Local 803 dues, but were not legally required and refused to
sign Local 803 membership cards; that Struffolino extended a $5 bill in payment
of the monthly dues, which Kalisky refused unless she also signed a Local 803
card; and that Struffolino repeated her statement that although she was under a
legal obligation to pay dues, she was not required to sign the card, to which Kalisky
replied that she was "misinformed." 4
The Charging Parties also testified that later that day, around the 5 p.m. quit-
ting time, the group again offered to pay dues to Kalisky, reiterating their refusal
to sign cards, but that Kalisky rejected the offer with the statement that if they
did not sign the cards they were fired and need not return to work after the
Labor Day weekend .5
2. Hance and Auld, former Zoe employees, also testified at the first hearing.
Hance, one of the instigators of Local 149 at Zoe, testified, among other things,
that he reported the tenders (and Kalisky's rejection thereof) to Local 149 orga-
nizer Duffy on Friday evening, August 30, as had been arranged the night before at
the Local 149 meeting. Auld, the married daughter of Charging Party Gagan, testi-
fied as a rebuttal witness for General Counsel mainly on the alleged 5 p.m. tender
and incidentally on the noon tender.
3. Patrick Duffy, a Local 149 organizer, at the first hearing described the events
leading to the union meeting which he, like the Zoe employees, fixed as Thursday,
August 29. His testimony as to what took place at the meeting is substantially con-
sistent with that of the Charging Parties. He stated that in addition to the approxi-
mately 20 employees, the meeting was attended by Anthony Mazzocchi (the local's
president), Tom Hogan (an international representative), and Bernard O'Reilly
(Nassau County assistant director of labor relations). According to Duffy, he had
discussed the arbitrator's award with Hogan and Mazzocchi prior to the meeting.
Duffy corroborated employee Hance's testimony that he instructed Hance to report
on the employees' dues tender to Local 803 the next evening (August 30), and
stated that Hance did as requested.
Duffy's brief testimony at the reopened hearing was limited to the nature of rec-
ords maintained by his local. He indicated that the only record that could fix the
date of the meeting here involved was the local president's "daytime book" or
"calendar."
8 None of the Charging Parties testified at the reopened hearing.
4 Illustrative of the noon tender is Di Giacomo's testimony : "We told him [Kalisky]
that we were willing to pay the dues, but we wouldn't sign any card. So J Struffolino
took cash out of her envelope, she said, 'Here is my money. We will pay the dues But no
signing of cards.' He said he didn't want any dues ; we had to sign the card." Struffolino
thus described the tender: "I had my [pay] envelope in my hand . . I took out $5 . . .
I offered it to him. I said, 'There is no law stating we have to sign the card but we have
to pay the dues . . . . Well, he refused the dues . . . . he said if we don't sign the cards,
we have the deadline to sign the cards until September 3 "
One of 12 Charging Parties, Madeline Giolletti, was not in the August 30 group, having
allegedly hilt her $5 with Struffolino to give to Kalisky if he accepted Struffolino's tender
5 Labor -Day was on Monday, September 2. Pissarra's testimony on the alleged second
tender is typical : "At 5 o'clock when we punched our time card [Kalisky] was standing
there at the hallway, at the doorway as we walked out . . . . I was with J. [Struffolino
and other "girls" ] ... He told us again that we have to sign the cards. Otherwise don't
bother coming in to work. So we told him again we are not going to sign no cards, there
Is no law stating we have to. We are offering you the dues. If you don't want to accept the
dues, that 's not our fault."
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Thomas J. Hogan, international representative in charge of district 8, includ-
ing New York State, generally corrobated the testimony of other General
Counsel witnesses as to what transpired at the meeting-including the delibera-
tions respecting the dues and fees tenders and the telephone contact between
Local 149's representatives and its attorney. Hogan testified (at the second hear-
ing) that he attended only one meeting involving the Zoe employees; that "it just
happened" that he was in Albertson that day on other business and got himself
"involved with the [Zoe] discussions" incidentally; that he recalls Zoe employees
starting to "wander into the meeting hall" around 5:30 p. m. and assembling in
about "an hour or so"; and that he himself made the telephone call to the
Union's attorney and then turned the telephone over to Mazzocchi and Duffy so
that they could check on the question of the tender. Apart from estimating the
date of the meeting to be late in August, he had no independent recollection of
the date. He recalled, however, that he arrived at the union hall "earlier in the
day" and stated that he might be able to fix the day more accurately by his per-
sonal "activity book" which he could not produce at the hearing.
Excerpts from the activity book, subsequently introduced in the record,6 show
that Hogan was in Albertson on August 29, arranged for a committee meeting of
the Sylvania unit of the local, worked on contract language, and returned home
to Bridgeport at 10:15 p.m. The activity book also indicates that Hogan was often
in Albertson before and after August 29 (including August 27, 28 and September 3)
to discuss the Sylvania matter.
5. Anthony Mazzocchi, president of Local 149 (one of General Counsel's chief
witnesses at the reopened hearing), testified that after Duffy "related the concern of
the people about the question of dues, that they must pay it or be discharged," he
decided to "meet with them and lay down a very specific and firm policy regarding
the question." Like other General Counsel witnesses he stated that the meeting took
place on the evening of August 29 (he had no independent recollection of the time);
that there was "considerable discussion over events that transpired"; that after a
telephone call to Local 149 Attorney Mozer "to verify" his view on the matter, he
instructed the group that they should pay their dues and pay them [Local 8031 ini-
tiation fees," but without signing cards ; and that among those present were Duffy,
Hogan, and O'Reilly.
Mazzocchi stated that Local 149 kept no minutes of meetings with a "newly orga-
nized group" like that at Zoe, explaining that minutes were kept for only regular
"monthly meeting [s] of the general membership" covering employees of all plants.
However, he produced a desk diary or calendar (8i/2 by 11 inches) showing "ap-
pointments & scheduled events" between the hours of 8 a.m. and 6 p. m. and in
"night hours"; the calendar also catalogues items "to be done" and "services per-
formed" on particular dates. It lists or notes four scheduled meetings between
Mazzocchi and the "Zoe group" in his office at the Local 149 hall (Albertson, Long
Island ): August 29, between 5 and 6 p.m.; September 3, during "night hours"; Sep-
tember 4 at 8 a.m.; and September 18, again during "night hours." According to
Mazzocchi, meetings noted for the end of the day (after 5 p.m.) did not necessarily
signify their start or duration . Referring to the 5 to 6 p.m. August- 29 entry, he
stated that it only "mean[t] to me that I am to stay in the office, that I will be
meeting in connection with Zoe Chemical after work." He buttressed this statement
by pointing out that the calendar shows cancellation of an appointment scheduled
for the "night hours" of August 29, apparently in anticipation that "the whole eve-
ning would be taken up." Mazzocchi estimated-that the September 3 meeting during
"night hours" "could have" started at 7 or 8 p.m. Explaining the September 4 meeting
at 8 a.m ., he stated,' "I had been informed that the employer would not allow the
people to go into work that morning. . . . It appears'that 8 o'clock in the morning
might be the morning when I met with the group' for,that purpose."
Other entries of interest in this proceeding pertain to meetings with or instructions
to Bill Hance (Local 149's major contact with the Zoe employees) on the Deresh
episode in which an alleged Local 803 representative assaulted Zoe employee Deresh
(see, Decision footnote 15); 7 and meetings (or cancellation of meetings), and action
6 By order dated November 15, 1965, I approved the stipulation of General Counsel and
Respondent Zoe for the introduction of the "activity, book," which was received ,as :Re-
spondent Zoe Exhibit 4(a)-4(i).
71 deemed it unnecessary in my first Decision to pass on the question of Local 803's
responsibility for the conduct of certain alleged agents; it is likewise unessential to pass
on this question in this Decision.
ZOE CHEMICAL CO., INC. 1025
taken with respect to contract negotiations with Sylvania on August 26 and 27, Sep-
tember 3, 4, 5, 12, and 23.
6. Bernard J. O'Reilly's testimony at the reopened hearing is fully consistent with
that given at the original hearing. He testified that he went to Local 149's hall in
Albertson in his capacity of assistant labor relations director , Nassau County, to
resolve what he thought was a jurisdictional dispute between two unions , arriving at
8 or 8:30 p.m., while the meeting was in progress . As noted in the Decision of Sep-
tember 30 , 1964 ( footnote 18), O'Reilly was not sure of the date of the meeting.
However, he recalled that this was the only meeting he attended with Duffy, Hogan,
and Mazzocchi present; that the meeting was "fairly crowded" with approximately
20 people; that he heard Duffy and Mazzocchi tell the employees "that all the peo-
ple are required to do is pay dues and initiation fees, but they do not have to sign
cards"-a remark that "sticks in [his] mind . . . because it's an unusual position";
that that statement was made after Duffy had made a telephone call (which he ob-
served him do ); and that "there was a lot of dialogue between the people , Mazzocchi
and Hogan and Duffy" concerning the employees ' obligation to pay dues and "join
the other labor organization ." O'Reilly stated that although he soon discovered that
his agency had "no jurisdiction " over the labor dispute at Zoe, he nevertheless
stayed around for about an hour, leaving at approximately 9:30 p .m. when the meet-
ing was over. In the course of the meeting, he had occasion to confer with Interna-
tional Representative Hogan ( in another office of the hall) concerning a different
labor matter ( identified by him in the first hearing as the Sylvania contract
negotiations).
7. Evan J. Spelfogel , counsel for General Counsel at the original hearing , but now
in private practice , testified that although he had stipulated at the first hearing that
he could not recall the specific time of day when Kalisky visited his office and that
he had no records with which to refresh his recollection on this matter , an exhaus-
tive search of his personal records made after receiving the subpena from me re-
sulted in his locating a home-made personal wall calendar showing an appointment
with Kalisky at 2 p .m. on August 30. The calendar , consisting of 12 by 8 inch yellow
sheets-lined off horizontally and vertically to form boxes for each weekday of the
month like a monthly calendar-was used by Spelfogel to supplement his small desk
calendar and was placed on the wall (or in the fly leaf of his desk ) to record his
appointments , hearing schedules , etc., so as to give him "a picture of the next few
weeks in front of [him ] at a glance ." The calendar shows the entry "Kalisky 2
p.m." in the Wednesday (August 28) box circled and carried over by an arrow to
Friday, August 30 . According to Spelfogel , "this was my shorthand way of indicat-
ing that the appointment was shifted from Wednesday , the 28th , to Friday, the
30th." 8
Spelfogel•testified that "the calendar that I found . . . stimulated my chain of rec-
ollection . I began to search my mind as to these events . . ." He recalled
returning from lunch at approximately 2 p.m. (he usually lunched between 1 and 2
p.m.) and apologizing to Kalisky for his waiting (he was not sure whether he was
a few minutes late or Kalisky a few minutes early ). Kalisky stated he hoped that
Spelfogel "wouldn't keep him too long" because he had a car double-parked or being
driven around the block , stressing that he was "in a hurry ." Spelfogel then proceeded
to interview Kalisky concerning Local 803's pending unfair labor practice charges
against Zoe ( see Decision of September 30, 1964 , footnote 11) and drafted a 31/4-
page statement which Kalisky read over and signed . According to Spelfogel , Kalisky
left around 3 p.m.'Spelfogel stated that Kalisky reminded him several times during
the interview that he was "in a hurry," referring to a Labor Day holiday trip he was
going to take and mentioning that he had "a full schedule of appointments."
Spelfogel conceded making "a search of the available records that I had. . . to
help me refresh my recollection " after Kalisky pleaded his "alibi" at the first hear-
ing. He stated that he vainly "looked everywhere" in his office for such records, not
realizing at the time that weeks before that bearing-in anticipation of leaving the
NLRB'( he left the Board about 2 or 3 weeks after the first hearing ended on April 15,
1964)-he had packed and stored his personal calendar in the basement of his
8 There is no dispute-that Kalisky's original appointment N;as for-2 pm on Wednesday.
In issue is whether the Friday appointment was for 2 p in (as claimed by Spelfogel) or
12 30 p .m. (as claimed by Kalisky ). Spelfogel emphasized that the new appointment for
Friday (carried over by the arrow) shows no changed time (e.g, 12: 30 pm.)-which
would have been the case if a different time had been set for Friday
257-551-6T-vol. 16 0-6 6
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home, "together with a lot of other materials which were my own possessions ac-
cumulated through 4 years with the NRLB." Spelfogel explained that "it was only
after my receiving [the] subpena and my searching and going through every box
that I came across" the calendar.s
8. Victor J. Nearing, the attorney who handled Local 803's petition to confirm its
arbitration award in court, testified only at the first hearing as a rebuttal witness for
General Counsel. Nearing had "no independent recollection of seeing" Kalisky on
August 30, although the petition on its face indicates that it was executed and ac-
knowledged before him on August 30; nor did his appointment diary for August 30
show any entry concerning Kalisky. (He stated that his diary would not normally
show clients' perfunctory visits to sign papers.) Nearing further testified that his
office was usually not open before 9:30 a.m. and that his secretary was "normally"
late for work.
B. Respondents' evidence
1. Kalisky testified at both hearings, tenaciously adhering to his claim that the
Charging Parties did not tender dues to him at the Zoe plant on August 30 because
he was not there. In detailing his whereabouts on August 30, he testified that he left
home (Rego Park, Queens) at 8 or 8:30 a.m. and went by subway to the office of
Attorney Nearing in midtown New York (36 West 44th Street, between 5th and 6th
Avenues) between 9:10 and 9:15 a.m. According to Kalisky, Nearing's office girl
told him, "You must he Mr. Kalisky . The papers [you are to sign] are not
ready," and asked him to return around 11 a.m. He then walked to the office of
Attorney Katz (who was handling Local 803's unfair labor practice charges against
Zoe) at Lexington Avenue and 40th Street, stayed from 10 to 11 a.m., returned to
Nearing's office around 11:30 a.m., signed papers in Nearing's presence, and then
walked to the Board's offices (745 5th Avenue, between 57th and 58th Streets) to
meet with Spelfogel, arriving around 12:30 p.m. Kalisky further testified that he
stayed with Spelfogel until 2 p.m., walked to Hector's Cafeteria (Broadway and
43d or 44th Street) for lunch, and-after 11h hours-returned to see Katz around
4:30-5 p.m., before going home.
At the reopened hearing, Kalisky stated that neither he, nor Local 803, had
records (union minutes, correspondence, diaries, travel vouchers, etc.) bearing on
his whereabouts or activities on August 30 except the statements notarized on that
date by Nearing and Spelfogel.i° He conceded that his original appointment with
Spelfogel had been for Wednesday, August 28. Although at first pleading inability to
recall the time for which it had been scheduled, he later recalled it was for 2 p.m.
He remembered requesting Spelfogel to postpone the meeting to Friday, so that he
could check on the posting of the arbitrator's award at the Zoe plant, but stated that
"to the best of [his] recollection" Spelfogel fixed Friday's meeting for 12:30 p.m.
Kalisky testified in both hearings that he talked to the Zoe employees in the plant
during both lunch time and at quitting time on August 28.11 He recalled telling
employees, including Struffolino, that in accordance with the arbitration award they
had to pay their dues and initiation fees by September 3 or face discharge.
Kalisky disputed much of Spelfogel's testimony concerning the August 30 inter-
view, Kalisky questioned Spelfogel's testimony as to its duration and content. He
denied going to the Board's office by automobile. Although at first unable to remem-
ber telling Spelfogel that he was "in a hurry," he thereafter flatly denied making
such statement. He claimed, contrary to Spelfogel, that the latter had drafted two
statements , the first having been discarded because "there was a lot of mistakes."
Although Spelfogel estimated the duration of the interview at 45 minutes to an, hour,
Kalisky stated it was about an hour and a half. Kalisky and Spelfogel agreed that the
6 At the hearing, Respondents objected to General Counsel's offer to introduce Spelfogel's
calendar on the ground that General Counsel was "going behind [the] stipulation" and,
indeed, contrary to the stipulation at the first hearing, to the effect that Spelfogel had no
records with which to refresh his recollection as to the time of day Kalisky visited his
office. In overruling this objection , I pointed out that although I would take into account
inconsistency of evidence adduced in assessing credibility, the paramount interest in- as-
certaining the true facts outweighs technical effects of stipulations . See 50 Am. Jur.,
Stipulations , $ $ 11 and 14; 9 Wigmore, Evidence § 2590 ( 3d ed . 1940).
10Kalisky testified that he was the only person holding office in Local 803 after July 3
through at least September 30.
n Kalisky had difficulty at both hearings in fixing the time of his visits to the plant.
ZOE CHEMICAL CO., INC . 1027
interview commenced after the latter returned from lunch, but Kalisky fixed the
beginning at 12:45 p.m. or close to 1 p.m. (he allegedly waited around 15 minutes),
and Spelfogel at around 2 p.m.
Although Katz's calendar, produced at the second hearing pursuant to subpena,
indicates that Kalisky had scheduled an appointment with Katz (his attorney)
around 12 p.m. on August 28 to discuss Kalisky's forthcoming August 30 interview
with Spelfogel, Kalisky could not, however, "remember" seeing Katz on August 28
or changing his appointment from the 28th to the morning of the 30th. Katz's calen-
dar indicates that Kalisky had a 10 a.m. appointment with him on August 30, but
Kalisky denied making any such appointment in advance, insisting that he saw Katz
twice that day "on my own."
2. Cha, les R. Katz, Local 803's attorney at the first hearing,12 testified that Kalisky
twice visited him in his office on August 30. According to Katz, the first visit,
around 10 a.m., lasted about a half hour and the subject was Kalisky's interview
with Spelfogel later in the day on Local 803's refusal-to-bargain charges against Zoe.
Katz testified that Kalisky again visited him between 4:30 and 4:45 p.m. to report
to him on his (Kalisky's) interview with Spelfogel. He stated that although he had
"no independent recollection" of Kalisky's first (10 a.m.) visit, he positively remem-
bered the second (afternoon) visit. Katz remembered telling Kalisky that he had no
time to talk to him then because he had to make a 5:07 p.m. train to meet his wife
for a dinner engagement . He vividly recalled the day and hour because his wife had
been hospitalized with two serious operations shortly before and this was the first
night after a long period of convalescence that they were going out socially with two
other couples (including recently married relatives from Florida) joining them for
dinner at the Lido Beach Hotel. Katz even recalled that the "headliner" that evening
was Harvey Stone. According to Katz, he pleaded with Kalisky "to hold until after
the weekend" whatever he had to say to him, but Kalisky managed to report on the
Spelfogel interview and to talk about other things, as they walked together to Grand
Central station, a block and a half from Katz's office.13
3. Florence Gagan and Esther Ilay, two of the Charging Parties, testified at
the first hearing as witnesses for Respondent Zoe. Their testimony as to the noon
and 5 p.m. tenders was generally in line with that of the Charging Parties called
by General Counsel. Gagan admitted she was "very bad on dates." She also admit-
ted that a week before she testified the Charging Parties met and discussed the
events here in issue in order to "refresh" their memory. As I stated on the record,
Hay's confusing testimony is entitled to little weight; Hay testified on the alleged
5 p.m. tender, although admitting, after confronted with her timecard, that she
had checked out at 12:02 p.m. and, on account of illness , did not thereafter return
to the plant.
4. Marian Nothaft, Zoe's bookkeeper, testified only at the first hearing. Respond-
ent Company sought to show through her testimony that Struffolino could not
have tendered a $5 bill to Kalisky on August 30 because the $53.67 pay she
received in the envelope on that day did not contain any bill of that denomina-
tion. However, Nothaft testified only that "she did not get one from me." She had
"no idea" whether Stuffolino had a $5 bill from another source. Nothaft admitted
that nine $5 bills were inserted in employees' pay envelopes on August 30. Further-
more, she had no independent recollection concerning the August 30 payroll; her
testimony concerning the distribution of bills in the payroll makeup rests on infer-
ence and deduction.
C. Credibility resolution
As appears below, resolution of what appeared to be an irresolvable credibility
issue in the posture in which the record was left at the conclusion of the first
hearing has now been made possible through supplementation of that record by
substantial documentary evidence and testimony of key witnesses. This is not to
say that the credibility resolution task has been easy. It is to say that, as in other
flat conflicts of this nature, the record as now developed contains sufficient and
dependable clues as to the truth to facilitate determination of the issues.
v Katz did not represent Local 803 at the second hearing.
13 Katz's calendar entries on Kalisky's August 30 and 28 visits already have been referred
to. A notation for 2 p.m., August 30 , reads : "get gift for tonight re dinner " ; Katz testified
that he obtained the gift that afternoon for the newlyweds from Florida at Macy's De-
partment store.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I see it, the three major credibility questions to be decided are whether (1)
the Charging Parties met with their leaders in the Local 149 hall in Albertson,
Long Island, on Wednesday evening, August 29, and there received instructions to
tender dues to Local 803; (2) whether they tendered the dues at noontime the next
day (August 30), but Kalisky (the Local 803 president) rejected the tender
because the employees refused to sign Local 803 membership cards; and (3)
whether they again made a like tender, and Kalisky again rejected the tender for
a same reason, at quitting time (5 p.m.) that same day.
1. The Local 149 meeting on August 29
In my view, the key to resolution of the question whether the Charging Parties
met with their leaders on the evening of Wednesday, August 29, lies largely in
the credibility of Anthony Mazzocchi, Local 149's president. Mazzocchi impressed
me as a most meticulous and sincere witness. His disinclination to testify one way
or another on certain remote events-beyond the normal range of memory-unless
assisted by records, and his admission of matters not wholly favorable to the best
interests of his union, evinced refreshing candor and frankness in a hearing in
which proneness to exaggerate and to withhold facts-as it best suited interested wit-
nesses-was not uncommon.
Furthermore, Mazzocchi's testimony is supported to a significant degree by
documentary evidence, testimony of a completely disinterested witness, and corrob-
orating circumstances. Thus, Mazzocchi's desk diary or calendar establishes that
he met "with Zoe Chem. group" at Local 149's headquarters on August 29.14 Inter-
national Representative Hogan's "activity book" shows that he was in Albertson
(where Local 149 is located) on that day to. handle the Sylvania contract negotia-
tions. O'Reilly (Nassau County labor relations director)-a completely disinter-
ested witness-although unable to name the particular date he attended the Local
149 meeting where the Zoe matter was discussed, identified it as the only meeting he
attended with Hogan, Duffy, and Mazzocchi being present; and he recalled con-
ferring with Hogan on the Sylvania matter in the course of the meeting. O'Reilly,
Mazzocchi, Hogan, Duffy, and the Charging Parties mutually corroborated each
other as to matters discussed at the meeting, including Mazzocchi's and Duffy's
instructions regarding their dues tender the next day to Local 803. Finally, the
very sequence of events-the Company's posting of the arbitration award on
August 27 and Company President Axelrod's announcement the next day that all
employees would have to join Local 803 by September 3 in order to avoid dis-
charge-dictates the logical step of the Local 149 leadership to call the August 29
evening meeting to allay, as Mazzocchi testified, "the concern of the people" and to
"lay down a very specific and firm policy regarding the [dues] question."
Respondent contends that the meeting could not have taken place on August 29
because: (1) Mazzocchi's calendar does not contain any entry concerning Sylvania
contract negotiations on August 29; (2) if, according to Mazzocchi's calendar, the
approximately 2-hour meeting started between 5 and 5:45 p.m., it was over by. the
time O'Reilly arrived, at around "8:30 p.m." (O'Reilly actually gave 8 to 8:30
p.m. as the time); and (3) if, as the Charging Parties testified, the meeting started
at "8:30 p.m." (they actually gave 8 or 8:30 p.m. as the time),Hogan could not
have attended the meeting because his activity book shows that he returned from
Albertson to Bridgeport (a "two hour" trip) by 10:15 p.m. that.evening._As to (1),
the fact is that Hogan, not Mazzocchi, was Local 149's principal Sylvania contract
negotiator, and it was with Hogan, not with Mazzocchi, that O'Reilly conferred at
the meeting; Hogan's activity book shows that he worked-the entire day of August 29
on the Sylvania contract; ^ and O'Reilly' testimony shows'•that his chief purpose for
going to the meeting -in the evening was to look into the Zoe labor dispute and not
the Sylvania contract negotiations-certainly not pursuant to a previous appointment
with Mazzocchi. As to (2), Mazzocchi credibly testified that appointments set for
the last hour of the day (5-6-p.m.) Aid not necessarily signify that they were to be
held within that hour; that such entry meant only that he was to stay for an appoint-
ment after working hours; and that this was especially true of the Zoe meeting
because, as his calendar shows, he-canceled a "night hours" appointment after 6 p.m.
As to• (3), it is evident that the 8 or 8:30 p.m.' starting, time was only •an approki-
is The reliability 'of the calendar -is demonstrated' by entries 'as • to 'other eveiit§ iris little
or no dispute, e.g., a meeting around 8 a.m., September 4, between Mazioechi'and the
Charging Parties ; and the Deresh incident that took place at the end of August (Decision
of 'September 30, 1964, footnote 15).
ZOE CHEMICAL CO., INC. 1029
matron and, contrary to Respondent's claim, Hogan's activity book shows that he
frequently made the trip between Albertson and Bridgeport in 11/2 hours-so that if
the meeting commenced as late as 8 p.m., Hogan could have left at 8:45 and still
have arrived in Bridgeport at 10:15 p.m.
I further reject Respondent's contention that the "earliest that this crucial meet-
ing could have taken place . . . was September 3rd." Every witness testifying on
the meeting, including O'Reilly recalled it to be an evening meeting. Mazzocchi's
calendar indicates that he had a "night hours" meeting with Zoe employees on
September 3, but the Sylvania negotiations on that day (and O'Reilly's participa-
tion therein, if any) took place at noon. Nor is there any evidence from which I
could reasonably infer that the meeting occurred on any later date, such as on
September 18 (the next "nights hours" meeting) when, according to Mazzocchi's
calendar, the Sylvania negotiations again took place mid-day.
I find that the Local 149 union meeting in issue-at which the Charging Parties
were instructed to tender dues and initiation fees the next day to Local 803-took
place on August 29, as contended by General Counsel.
2. The noontime dues tender
Whether the Charging Parties tendered the dues at noontime, August 30, involves
not only a basic confrontation between Kalisky (Local 803 president) and the
Charging Parties, but also between Kalisky and Spelfogel (former counsel for
General Counsel). For, as noted, Kalisky testified that he was being interviewed (on
pending Local 803 charges) at the Board's Manhattan office around the time the
employees supposedly were tendering dues to him in the Zoe plant at New Hyde
Park, Long Island. Spelfogel, on the other hand, testified that the interview was
between 2 and 3 p.m., which, as will be shown, would have enabled Kalisky to
meet with the Charging Parties at noon and also with Spelfogel at 2 p.m.
I have already discredited Kalisky on a crucial issue in this case, namely, his
testimony in the first hearing that he never told employees that they had to join or
sign Local 803 cards in order to avoid discharge (Decision of September 30, 1964,
page 5 and footnote 8). As I indicated, it stretches credulity to suppose that a per-
sistent organizer like Kalisky would have humbly told employees, as he claims, "I
am leaving the cards [with the employees], just in case any of [you] ... desire to
become members or join our local . . . I'm giving it to you because I don't want
it ever to be said that you were never approached to join the Union." As between
Kalisky and Spelfogel, I have no hesitancy in crediting the testimony of the latter. I
accept Spelfogel's rather than Kalisky's version of the interview.
To begin with, Kalisky's "alibi" rests on his uncorroborated testimony, Kalisky
could produce no records of any kind (such as diaries or expense vouchers) to sup-
port it. To be sure, this in itself is not decisive since there is no requirement that a
person keep a timetable of all of his movements each day. This, however , does not
change the fact that Kalisky's account of his whereabouts during the crucial time of
day on August 30 (10:30 a.m.-4 p.m.) rests on his own say so and nothing more.
Thus, Attorney Katz estimated that Kalisky's visit to his downtown New York
office-which began around 10 a.m.-lasted until around 10:30 a.m. Attorney Near-
ing could not substantiate Kalisky's claim that he [Kalisky] was in his Manhattan
office around 11:30 a.m. There is no evidence corroborating Kalisky's testimony that
he was in Spelfogel's office during the crucial 12:30-2 p.m. period. Nor is there any
evidence supporting his claim that he spent the "next 21/2 hours (2-4:30 p.m.)
strolling to and from Hector's Cafeteria, 11/2 hours of that time at lunch. If any-
thing, it is hard to believe that Kalisky took such long and leisurely walks and so
long a lunch period on a day on which, as he testified, he was "in a rush" to attend
to various matters before the Labor Day weekend.15
On the other hand, Spelfogel's testimony that the interview was between 2 and 3
p.m. is supported by his personal wall calendar showing that his appointment with
Kalisky was carried over from 2 p.m., August 28 to the same time on August 30.
Physical inspection of his home-made calendar (the Scotch tapes in comers of the
sheets , the tears on them, and their general appearance) leaves no doubt as to its
genuineness . To be sure, Spelfogel's failure to produce this calendar in the first hear-
ing warranted more than usual scrutiny. However, under all of the circumstances,
I am satisfied that Spelfogel, as he testified, was unaware at the time that his home-
made calendar (which he used only to supplement his regular desk calendar, to give
'5 Kalisky testified at the first hearing, "Actually, that day I was in a rush. It was the
Labor Day weekend, I wanted to get as many things done as possible."
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him a broad view of his future commitments "at a glance") contained such entry;
and that, in any event, his failure, at that time, to check its contents is attributable
to the fact that the calendar was packed away amongst other personal belongings,
weeks before the first hearing, preparatory to his leaving the NLRB.
I am satisfied that Spelfogel's failure to produce this calendar at the first hearing
was due to a lapse of memory-not uncommon even among honest witnesses-and
that his production of the calendar at the second hearing was in response to a
diligent search after being served with a subpena to appear at that hearing. I refuse
to brand Spelfogel's calendar and his testimony as sheer fabrication to advance what
at best might be a sentimental interest "to win" a case formerly "his" as former
counsel for General Counsel.is
Other aspects of Kalisky's testimony merit consideration in assessing the credi-
bility issue:
(a) Kalisky admitted speaking to the Zoe employees at noon and again at quit-
ting time on Wednesday, August 28, but insisted that he merely warned them to
pay dues or face discharge. He also admitted that on a Friday, in the middle or end
of September, Struffolino, in the presence of a dozen other employees, tendered a
$5 bill as dues. According to Kalisky, since the employees already owed 3 months'
dues plus the $25 initiation fee by this time, he conditioned acceptance of payment
upon the employees' willingness to sign checkoff authorizations. The setting and
content of the September dues offer, as Kalisky recounted it, are in material respects
similar to the Charging Parties' account of the August 30 noontime offer, with the
crucial difference in date.
(b) As a zealous partisan, Kalisky did not hesitate conveniently to forget or to
withhold facts when it suited his purpose. His farfetched claim that he never
approached employees to sign Local 803 membership cards has been mentioned.
Another example is his failure to recall appointments with his attorney (Katz) on
August 28 and 30, as shown by the latter's calendar entries. Kalisky's testimony
is frequently punctuated with "I don't recall" responses on important matters, such
as whether he had mentioned any employee dues offers or refusals to sign Local 803
cards in conversations with Zoe officials before the discharges (i.e., August 30-
October 4).
(c) Kalisky testified that he invariably went to the plant (at New Hyde Park,
Long Island) by automobile. A map introduced in the record by counsel for Gen-
eral Counsel purports to show that the distance between New Hyde Park and Man-
hattan (location of the Board) is 12 or 13 miles. A railroad timetable (also intro-
duced by General Counsel) gives 181/2 miles as the distance between the two points.
Respondents contended that the distance is substantially greater (25 or 30 miles),
but introduced no evidence, requesting me "to take notice of the fact" that the
Long Island Expressway is a congested highway and that this was especially so
around August 30, when the New York World's Fair was under construction. How-
ever, if, as I found (particularly on the basis of Spelfogel's credited testimony),
that Kalisky drove to the Board office by automobile in order to keep his 2 p.m.
appointment, it would appear that Kalisky could readily have made the trip from
the plant to the Board office in the interval between a noon dues tender at the
plant and a 2 p.m. appointment with Spelfogel, even allowing for "crowded" New
York roads at that time-particularly since the trip involved mid-day (as opposed
to rush hour morning and evening) travel. I so find.17
I find that the Charging Parties, as they testified, tendered dues to Kalisky at
noontime, August 30. I further find that Kalisky rejected their tender because of
their refusal to sign Local 803 membership cards.
3. The 5 p.m. dues tender
In resolving the question whether the Charging Parties, as they testified, again
tendered dues at 5 p.m., August 30, I give controlling weight to Attorney Katz's
1e Contrary to Respondent Zoe's contention, I do not regard Spelfogel's alleged inability
to recall all of the minor details pertaining to the August 30 interview (some on purely
collateral matters), as reflecting on his credibility or as affecting the substance of his un-
equivocal testimony on the basic matters in issue.
17hor the foregoing reasons, I find that Kalisky could readily have made the trip (by
automobile) from Katz' office (which he left around 10 • 30 a in ) to receive the noontime
tender at the plant ; I do not credit Kalisky's testimony that he visited Attorney Nearing
between 10 • 30 and 12 noon. (I note that according to the railroad timetable in evidence,
the travel time between New Hyde Park and Manhattan (Pennsylvania Station-West 32d
Street and 7th Avenue) is around 35 minutes )
ZOE CHEMICAL CO., INC . 1031
testimony. As is evidenced from my summary of his testimony (supra, B, 2), Katz
was precise, unequivocal, and convincing on this point. He vividly portrayed the
unusual circumstances prompting his recollection of Kalisky's visit to his office
shortly before 5 p.m., including his hurried conversation with Kalisky enroute to
Grand Central station to make a 5:07 Long Island train in order to meet a special
7 p.m. dinner engagement with his recently hospitalized wife and newly-married
relatives from Florida. Such detailed specificity normally does not accompany
fabrication. Although one of General Counsel's witnesses, Auld (daughter of
Charging Party Gagan), gave a specific reason for remembering the incident (she
was pregnant at the time and intended to quit on September 3), she gave confusing
accounts of some of the events about which she testified and she impressed me as
an unreliable witness. Furthermore, not without significance is Local 149 Organizer
Duffy's testimony that although he first suggested to the employees at the August 29,
(Local 149) meeting, that they tender dues the next day at the 5 p.m. quitting time,
he agreed to change this to 12 noon after one of the girls remarked, "We get paid
at 12 and we are all together then."
Accordingly, based on the credited testimony of Katz, I find that the Charging
Parties did not tender dues to Kalisky on August 30 at 5 p.m. quitting time 18
Having found that the Charging Parties tendered dues to Kalisky, Local 803's
president, at noontime August 30, prior to the September 3 deadline fixed in the
arbitrator's award, and that Kalisky rejected the tenders because of the employees'
refusal to sign authorization cards, I conclude-under the law of the case set down
in the Board's Order of June 22, 1965-that Local 803 caused the discharge of the
Charging Parties for reasons other than their failure to tender the periodic dues and
initiation fees uniformly required as a condition of union membership, in violation
of Section 8(b)(2) and (1) (A) of the Act.
III. THE ALLEGED 8 (a) (3) AND (1) VIOLATION
Having found that Local 803 caused the discharge of the Charging Parties for
reasons other than nonpayment of dues, the remaining question is whether Respond-
ent Zoe had reasonable grounds for believing that Local 803's discharge request
was predicated on the employees' failure to pay dues.19
A. The evidence
As found in my first Decision, Kalisky continued his attempts to solicit dues,
fees, and signed cards after August 30. On September 3 (the final day set by the
arbitrator for joining Local 803), just before quitting time, Kalisky told some of
the Charging Parties not to come back the next day because they were not going
to be paid; he said that they were fired because they failed to join Local 803 or
sign cards. The next morning (September 4) Kalisky repeated these remarks to the
girls before they entered the plant.20 The employees then went to Local 149's hall
and discussed the matter with Duffy and Mazzocchi (respectively, Local 149's
organizer and president). According to the mutually corroborative, credible testi-
mony of Duffy and several Charging Parties, Mazzocchi told them to return to
is My failure to credit the Charging Parties' testimony as to the 5 p in tender does not
affect my determination that they testified truthfully about the noon tender Paling in uno.
talsus in omnibus is not an absolute rule. 3 Wigmore, Evsdence § 1009 (30 ed 1940) , Vir-
ginian Mfg. Co. v..4rmentrout, 166 F.2d 400, 405 (C A. 4). "It is no reason for refusing to
accept everything that a witness says, because you do not believe all of it ; nothing is more
common in all kinds of judicial decisions than to believe some and not all." N L R B. v.
Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds 340
U.S. 474 This is particularly true where, as here, the employees' testimony on the noon-
time tender is corroborated by other credible testimony and documentary evidence (Olson
Rug Company v. N.L.R B., 304 F 2d 710, 715 (C.A. 7) ), as well as by the inherent probabil-
ities in the entire context of the case
1° I did not reach this question in my Decision of September 30, 1964, since my findings
therein that the Company did not violate Section 8(a) (3) and (1) of the Act was
grounded on the underlying finding (on the basis of the legal theory I applied) that Local
803 did not violate Section 8(b) (2) and (1) (A). (See Decision, III, H.)
20 Kalisky in the first hearing testified on direct-examination . "I told them that this is
the day I have been waiting for. This Is the day I'm going to enforce the arbitrator's
award This is the day I'm going to see that they are dismissed for not paying initiation
and dues . . . I told them not to go in . . . 'because you are not going to get paid for
that day: " Later, on cross-examination , Kalisky denied making these remarks.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to report to the Company what happened, and to tell "the boss" that they
previously offered Kalisky the dues but these were refused because they declined to
sign cards
According to the Charging Parties, they did as directed. Giacomo testified, "I
told [Company President] Axelrod, `We offered him [Kalisky] the dues. According
to law we are supposed to offer them. But we don't have to join any union."'
Struffolino testified to the same effect. Both quoted Axelrod as saying that he
"didn't know anything about it." Weber also quoted Axlerod as saying that "we
girls are causing him an awful lot of trouble." All testified that Axelrod ordered
them back to work after reminding them that it was he, not Kalisky, who did the
firing. Axelrod also told them that they "weren't going to get any coffee break that
morning because we walked out "
Axelrod admitted talking to the employees that morning. He stated, however,
"There was no discussion on anything except my telling them to go to work," and
explaining that "no one has a right to fire them except Mr. Kupetz [the coowner
of the business] and myself," and telling them that they would get "no coffee
breaks inasmuch as it [already was] ten o'clock." He specifically denied that any
employee mentioned anything about dues offers or about union cards. Nor could he
"recall any of them" complain "during that discussion" that Kalisky or anyone else
had said that employees were fired, explaining "I went right back into my office. I
wanted to have no conversation with them." When closely questioned on cross-
examination why he introduced the "right to fire" subject during the meeting, if no
employee had raised it beforehand, Axelrod stated that this remark was addressed
to a prior complaint from "someone, I don't remember who" that "Kalisky or some-
body, I don't know who" told the employees "not to go to work."
The employees continued to work without further incident until October 4. In the
meantime (on October 1), the New York State Supreme Court granted Local 803's
petition to confirm and enforce the August 26 arbitration award. On October 4,
Company Attorney Drimmer went to the plant and informed Kupetz of the court's
order "directing the employer to discharge" 23 named employees, including the
Charging Parties. After checking its records, the Company prepared "a list of the
12 employees [the Charging Parties herein] that were not members of Local 803."
According to Kupetz, these were "the people who were not having dues deducted
from their pay" according to company records. Drimmer then advised Kupetz to
assemble the 12 employees at quitting time (5 p.m.), display the court order, "ask
the employees if they were members of Local 803," and then discharge them if
they were not.21
Pursuant to Drimmer's advice, Kupetz requested the Charging Parties-none of
whom had "joined" Local 803-to meet with him before quitting time. Displaying
the court's order, Kupetz told 11 of the 12 employees then present (Bustos was
absent because of illness) that he "had to discharge" them because they were not
"members of Local 803." Bustos was similarly informed of the court order and dis-
charged on October 7.
As indicated in my Decision of September 30, 1964 (footnote 24), Kupetz' and
the employees' versions of the terminal interview differ in only one material respect,
i.e., whether the employees informed Kupetz that they had previously offered the
dues to Kalisky.22 Thus, Struffolino testified that she told Kupetz, "Mr. Kupetz, we
offered them the dues and they wouldn't accept it," to which Kupetz replied, "Well,
it is out of my hands." Pisarra testified that she told Kupetz, "We, offered the dues
Can't we just pay our dues and still work here?"; and that Kupetz replied,
"Well, I have nothing to do with that." De Giacomo, Weber, and Gagan (the last
one-a company witness) testified that they heard Pisarra make statements of sim-
ilar import. Kupetz, on the other hand, denied "any discussion" on (and before)
October 4 about dues and, more specifically, that any employee had previously
mentioned offering dues and fees to Local 803, or that Local 803 had refused to
accept them because the employees failed to sign union cards. He admitted that at
no time before the October 4 discharges had he asked Kalisky or any Local 803
representative "whether or not the employees had offered" or paid dues or initia-
tion fees to Local 803. Axelrod testified that at no time did he ask any employees
21 The findings in the above paragraph are based on the testimony of Kupetz
22 As further stated in that Decision (footnote 24), in view of the conclusions reached
therein it was unessential to resolve the above-noted testimonial conflict and other testi-
monial conflicts, including whether the Charging Parties told Axelrod on September 4
that Kalisky had rejected their previous dues offers . ( Decision , footnote 23.)
ZOE CHEMICAL CO., INC. 1033
whether they had tendered dues and fees. Kupetz said, "As I recall, he [Kalisky]
only had-insisted that we fire those employees who were not members of Local
803, and that was the sum and substance of it."
On October 8, all 12 dischargees filed unfair labor practice charges against the
Company, alleging discriminatory discharge as a result of the Company's union-
security agreement with Local 803 "although [each] tendered or offered to ten-
der her initiation fee and periodic dues required for membership in Local 803."
Between October 8 and 30, 10 of the 12 dischargees filed unfair labor practice
charges against Local 803 for causing the Company to take such action.
B. Conclusion
1.
As pointed out in my Decision of September 30, 1964 (III, G, 2), an employer
may lawfully accede to a union 's demand to discharge an employee under a valid
union-security agreement only if he has reasonable grounds for believing that the
request is based on employee nonmembership for failing to pay required dues and
fees. Based on the entire record, I find that Respondent Zoe did not have such
reasonable grounds.
a. As noted supra, after Kalisky on September 3 warned the Charging Parties
not to return to work the next day because they had failed to join Local 803 or
sign cards, they were advised by their own (Local 149) leaders to report the inci-
dent to the Company and to tell "the boss" that they previously offered Kalisky
dues, but that the latter rejected the offer on account of their refusal to sign cards.
The Charging Parties testified that they did as directed when they discussed the
matter with Company President Axelrod on the morning of September 4. They fur-
ther testified that later-in their October 4 discharge interview with company offi-
cial Kupetz-they similarly advised Kupetz of their prior dues offer and Kalisky's
rejection thereof. Axelrod and Kupetz denied that the employees ever mentioned or
made reference to any dues tenders.
I credit the employees' testimony in this instance. If, as I found, they tendered
the dues to Kalisky at noontime on August 30, reason and logic dictate that they
would have so informed their employer after the incumbent Union's president (Kal-
isky) threatened them with discharge and, later, when the employer himself
(Kupetz) attempted to effectuate the discharge. It must be remembered that the
Charging Parties had been imbued by their leaders with the knowledge that their
legal obligation to Local 803 extended to nothing more than payment of dues and
fees. Under the circumstances, De Giacomo's testimony that she told Axelrod,
"According to law we are supposed to offer them [ dues]. But we don't have to join
any union," and, further, that the employees already had offered the dues, is plau-
sible and believable. The credited testimony of Mazzocchi and Duffy (respectively,
president and organizer of Local 149) that they had instructed the employees to
apprise the Company of the employees' previous tenders, and Company President
Axelrod's admission that he addressed the employees on the "right to fire" matter,
lends further credence to the employees' testimony.
Accordingly, I find, as the Charging Parties testified, that before and at the time
of the discharges, they informed the Company of the fact that they had tendered
dues to Kalisky and that the latter had rejected their tenders.
(b) Even apart from the disputed evidence just discussed, the record amply jus-
tifies the inference that the Company did not have reasonable grounds for believing
that nonmembership of the dischargees did not result from failure to tender required
dues. There is no question that the Company knew that the Charging Parties were
members of a dissident group, that Kalisky was constantly around the plant soliciting
them to sign cards , and Kalisky threatened to have them fired on September 3 and
4 unless they joined Local 803. A prudent employer, familiar with these facts, would
at least have investigated the matter to determine if Kalisky's discharge demands
exceeded permissible limits. Cf. May Department Stores, Inc., (Kaufmann Division),
133 NLRB 1096, 1098. There is no evidence that the Company did. To the con-
trary, Axelrod and Kupetz testified that at no time had they asked Kalisky or the
employees whether the latter had attempted to comply with the union-shop pro-
vision by tendering dues and fees.23 True, Local 803's original (July 24) discharge
23 Nor could Kalisky remember ever discussing with the Company offers of money by
employees , nor whether the Company asked him if any employee had offered money
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request was predicated on dues delinquency. However, even assuming that the
Union meant what it said and that Zoe reasonably took its representation at face
value, the August 26 arbitral award, affording the employees new opportunity to
satisfy the statutory requirement for (Local 803) membership (by tendering
required dues and fees), would seem to have required the Company (under
circumstances of this case ) at least to check the validity of so serious a matter as
the Union's wholesale discharge demand Respondent Zoe, however, checked only
its own records to see whether "the people .. . were having dues deducted from
their pay" under checkoff authorizations, without ascertaining whether other employ-
ees had in effect authorized, or lawfully declined to execute authorizations, or (as
was the case), whether the employees were excused from the usual consequences
of failure to pay dues by reason of the Union's exaction of illegal conditions to
acceptance thereof. In any event, an employer cannot reasonably assume that his
employees are delinquent in dues and that they must be fired out of hand, without
reasonable inquiry as to the facts, merely because they had assumedly not executed
checkoff authorizations Employees may, for example, meet their monentary obliga-
tions under a union -security agreement by making payments directly to the union;
neither union nor employer may coerce them into signing checkoff authorizations.
See General Drivers, Chauffeurs and Helpers, Local Union No. 886, 119 NLRB
222, 223, enfd. 264 F.2d 21, 22 (C.A. 10). Cf. General Motors Corporation, Pack-
ard Division , 134 NLRB 1107, 1117.
Accordingly, particularly in view of the fact that the Company had learned from
the employees that they had made the required dues tender and in absence of
evidence that it knew otherwise (from the Union or elsewhere) or took reasonable
action with relation thereto, I find that the Company's discharge of the employees
must have been based on a ground other than the employees' failure to make the
statutory tender. Hence, by acceding to the Union's demand, the Company violated
Section 8 ( a)(3) and (1) of the Act.
2
In reaching the conclusion herein, I have not overlooked Respondent Zoe's con-
tentions: (1) that the New York State Unemployment Compensation Board found
that the Charging Parties quit work voluntarily and, furthermore, that they failed
to meet "one of the conditions of their employment" by refusing to join Local 803
in accordance with the union-security agreement. (See my first Decision, footnote
25); and (2) that the arbitrator in his August 26 award, and the New York State
Supreme Court in its October 1 order confirming the award, directed the Company
to discharge employees "who have failed to join the Union" by September 3.
As to (1), it is settled that the findings of a State compensation board are not
controlling in the Board 's independent determination of identical issues, especially
upon entirely different records. N.L.R.B. v. Packers, Inc., 339 F.2d 203, 204 (C.A.
6); N.L.R.B. v. Injection Molding Co., 211 F.2d 59, 65-66 (C.A. 8).
As to (2), as indicated in my first decision (footnote 31), I construe the arbi-
trator's requirement that the employees "join the Union" (and the court's order
enforcing that requirement) as nothing more than a requirement that the employ-
ees acquire membership by tendering required Local 803 dues and initiation fees.
To construe the arbitration award as requiring more ( i e., to sign union member-
ship cards ) would be to ascribe to the arbitrator and State court an intent to com-
pel the employees to do an illegal act. In short, I am applying the maxim, "An
award . will be construed so as to uphold it if possible . Everything will be
intended in its favor , consistent with the law, and nothing will be intended against
it ..." 5 Am. Jur. Arbitration and Award 144 and 14 (2d). In any event , assum-
ing, arguendo, that the award and confirmatory State court order required employ-
ees to sign Local 803 cards as a condition to retention of employment , it is clear that,
in that event, the Board would give no weight to the award and order since they
would be "repugnant to the purposes of the Act." International Harvester Company
(Indianapolis Works), 138 NLRB 923, 928, 929, enfd. 327 F.2d 784 (C.A. 7). See
also my first Decision, footnote 32.
Zoe's claim that its failure to comply with the State court's order (even if
erroneous) would have subjected it to punishment for contempt is not legally jus-
tifiable defense in this proceeding. The legal duty imposed on Respondent by Fed-
eral statute is paramount to any conflicting obligation which the State courts might
have imposed on it. N.L.R.B. v. International Union, U.A.W., Local 291 [Wiscon-
sin Axle Division], 194 F.2d 698, 702 (C.A. 7); The Grace Company, 84 NLRB
435, 436; Combustion Engineering Company, Inc., 86 NLRB 1264, 1266-67.
ZOE CHEMICAL CO., INC. 1035
Furthermore , "a state court is without power to hold one in contempt for violating
an injunction that the state court had no power to enter by reason of federal
preemption." In re Merritt W. Green, 11, 369 U.S. 689, 694.
Accordingly, I reject Respondent Company's contentions that the discharges were
immunized by the decisions and orders of the State unemployment compensation
board, the arbitrator, and the State court.
CONCLUSIONS OF LAW
1. By causing Respondent Zoe, in violation of Section 8(a)(3) of the Act, to
discriminate against employees who were denied membership in Respondent Local
803 on grounds other than failure to tender the lawfully required periodic dues
and initiation fees, Local 803 has engaged in unfair labor practices within the
meaning of Section 8 (b)(2) and ( 1)(A) of the Act.
2. By discharging employees upon Local 803 's demand when it had reason-
able grounds to believe that the employees' membership in the Union was denied
for reasons other than failure to tender the uniformly required periodic dues and
initiation fees, Respondent Zoe had engaged in unfair labor practices within the
meaning of Section 8 (a)(3) and ( 1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents engaged in unfair labor practices, I will
recommend that they cease and desist therefrom and that each take certain affirm-
ative action in order to effectuate the policies of the Act.
The affirmative relief will include a requirement that Respondent Zoe offer
immediate and full reinstatement to each of the Charging Parties to her former
or substantially equivalent position without prejudice to seniority or other rights
and privileges . In accordance with well-established precedent , I will also recommend
that the Union and the Company jointly and severally make the Charging Parties
whole for any loss of pay they may have suffered by reason of the discrimination
against them by the payment to each of them of a sum of money equal to that which
she normally would have earned from the date of the discrimination against her
to the date of the company 's offer of reinstatement , less her net earnings during
the said period . Since the record shows that the Union has already notified the
Company and the Charging Parties ( in writing ) that it has no objection to their
employment , the Union 's backpay liability shall be limited to 5 days after the date
it thus notified the Company and the Charging Parties. Backpay shall be computed
with interest on a quarterly basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co.,
138 NLRB 716. To facilitate the computation , as well as to clarify the named
employees ' rights to reinstatement , the Company shall make available to the Board,
upon request, payroll and other records necessary and appropriate for that pur-
pose. I will further recommend that the Company notify these employees of their
rights to reinstatement on application if they are serving in the Armed Forces of
the United States. The posting of appropriate notices is also recommended.
RECOMMENDED ORDER 24
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in this and the prior hearing in this case , and pursuant to Section 10(c) of
the National Labor Relations Act, as amended , it is ordered that:
A. The Respondent , Zoe Chemical Co., Inc., its officers, agents , successors, and
assigns, shall:
1. Cease and desist from encouraging membership in Local 803 , Allied Alumi-
num and Industrial Union, by discharging employees or in any other manner
discriminating against them in regard to hire and tenure of employment or any
term or condition of employment , except to the extent permitted by the proviso
to Section 8(a)(3) of the Act.
2. In any like or related manner interfering with, restraining , or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
' The order herein recommended supersedes the Recommended Order of Dismissal In
my Decision of September 30, 1964
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Take the following affirmative action which is necessary to effectuate the
policies of the Act.
(a) Offer Margaret Weber, Esther Hay, Florence Gagan, Mary Di Guiseppe,
Madeline Gioletti, Margaret Pisarra, Elizabeth Enzman, Helen Sujkowski, Rose De
Giacomo, Julia Struffolino, Mary Fink, and Ana Bustos immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, as provided in "The Remedy" sec-
tion of this Decision.
(b) Jointly and severally with the Respondent Union make whole the above-
named employees for any loss of earnings suffered by them by reason of the dis-
crimination, as provided in "The Remedy" section of this Decision.
(c) Notify the above-named employees if serving in the Armed Forces of the
United States of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, and personnel records and reports necessary to analyze the amount of
backpay due and the right to reinstatement, under the terms of this Recommended
Order.
(e) Post at its plant in New Hyde Park, New York, copies of the attached notice
marked "Appendix A." 25 Copies of the said notice, to be furnished by the Regional
Director for Region 29, after being duly signed by the Respondent Company's
representative, shall be posted by it immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set forth in para-
graph (e) above, and as soon as they are forwarded by the Regional Director,
copies of the Respondent Union's attached notice marked "Appendix B."
(g) Mail to the Regional Director for Region 29 signed copies of "Appendix A"
for posting by the Respondent Union at its meeting hall and offices. Copies of said
notice, to be furnished by the Regional Director, shall, after being duly signed by
a representative of the Respondent Company, be forthwith returned to the Regional
Director for such posting.
(h) Notify the Regional Director for Region 29, in writing, within 20 days from
the receipt of this Decision, as to what steps the Respondent Company has taken to
comply herewith.26
B. The Respondent, Local 803, Allied Aluminum and Industrial Union, its offi-
cers, agents , and assigns , shall:
1. Cease and desist from:
(a) Causing and attempting to cause the Respondent, Zoe Chemical Co., Inc.,
to discriminate against employees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing employees of the
Respondent Company in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following action which is necessary to effectuate the policies of the
Act:
(a) Jointly and severally with the Respondent Company make whole Margaret
Weber, Esther Hay, Florence Gagan, Mary Di Guiseppe, Madeline Gioletti, Mar-
garet Pisarra, Elizabeth Enzman, Helen Sujkowski, Rose De Giacomo, Julia Struf-
folino, Mary Fink, and Ana Bustos for any loss of pay suffered by them by reason
of the discrimination, as provided in "The Remedy" section of this Decision.
20 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
° In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order, what steps the Respondent Company has taken to comply herewith."
ZOE CHEMICAL CO., INC. 1037
(b) Post at its meeting hall and offices copies of the attached notice marked
"Appendix B." 27 Copies of said notice, to be furnished by the Regional Director
for Region 29, after being duly signed by the Respondent Union's representative,
shall be posted by the Respondent Union immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Union to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Post at the same places and under the same conditions as set forth in
paragraph (b) above, and as soon as they are forwarded by the Regional Director,
copies of the Respondent Company's notice attached hereto as "Appendix A."
(d) Mail to the Regional Director for Region 29, signed copies of "Appendix B"
for posting by the Respondent Company at its plant. Copies of said notice, to be
furnished by the Regional Director, after being signed by the Respondent Union's
representative, shall be forthwith returned to the Regional Director for such posting.
(e) Notify the Regional Director for Region 29, in writing, within 20 days from
the receipt of this Decision, as. to what steps the Respondent Union has taken to
comply herewith 28
17 See footnote 25.
21 See footnote 26.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in Local 803, Allied Aluminum and
Industrial Union, by discharging employees or in any other manner discriminat-
ing against them in regard to hire or tenure of employment or any term or con-
dition of employment, except to the extent permitted by the proviso to Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in Section 7 of the
Act.
WE WILL offer Margaret Weber, Esther Hay, Florence Gagan, Mary Di
Guiseppe, Madeline Gioletti, Margaret Pisarra, Elizabeth Enzman, Helen Suj-
kowski, Rose De Giacomo, Julia Struffolino, Mary Fink, and Ana Bustos
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to seniority or other rights and privileges they previ-
ously enjoyed.
WE WILL jointly and severally with Local 803, Allied Aluminum and Indus-
trial Union, make whole each of the above-named employees for any loss of
earnings suffered by them by reason of the discrimination against them.
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of the above-named Union, 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.
ZOE CHEMICAL Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NoTE.-Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386.
1038 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 803, ALLIED ALUMINUM AND INDUSTRIAL UNION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT cause or attempt to cause Zoe Chemical Co., Inc., to discrimi-
nate against employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
Zoe Chemical Co., Inc., in the exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL jointly and severally with the above -named Company make whole
Margaret Weber, Esther Hay, Florence Gagan, Mary Di Guiseppe , Madeline
Gioletti, Margaret Pisarra, Elizabeth Enzman , Helen Sujkowski , Rose De
Giacomo, Julia Struffolino , Mary Fink, and Ana Bustos for any loss of pay
suffered by them by reason of the discrimination against them.
LOCAL 803, ALLIED ALUMINUM AND INDUSTRIAL UNION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn , New York 11201, Telephone 596-5386.
Siskin - Steel and Supply Co., Inc. and United Steelworkers of
America, AFL-CIO. Case 10-Cq-6035. September 12, 1966
DECISION AND ORDER
On November 26, 1965, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs,
and Respondent also filed a reply brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 entire
record in this case. including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the findings, conclu-
160 NLRB No. 78.