Chisholm-Ryder Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1951

94 N.L.R.B. 508 (N.L.R.B. 1951)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
CHISHOLM-RYDER COMPANY, INC. and JOHN CAVICCHIA
UNITED GAS, COKE AND CHEMICAL WORKERS Or AMERICA, CIO, LOCAL
235 AND ITS LOCAL PRESIDENT, DAVID GOODWIN, CHIEF STEWARD
I{Ai;RY FULLER AND INTERNATIONAL REPRESENTATIVE, SAMUEL
OLFANo and JoHN CAVICCHIA. Cases Nos. 3-CA-84 and 3-CB-20.
May 16,1951
Decision and Order
On July 13, 1950, Trial Examiner George Bokat issued his Interme-
diate Report in the above-entitled proceeding, finding that, the Re-
spondents had not engaged in the unfair labor practices alleged in
the complaints and recommending that the complaints be dismissed in
their entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate, Report and a supporting brief. The Respondent
Company filed a brief in support of the Intermediate Report.'
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 Interme-
diate Report, the exceptions, briefs,'and the entire record in the case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the modifications and additions noted below.
We agree with the Trial Examiner that Cavicchia was lawfully dis-
charged pursuant to the Respondents' concededly valid union-shop
agreement, for failing to maintain his membership required by this
agreement as a condition of employment. As discussed in the Inter-
mediate Report, Cavicchia deliberately defaulted in the payment of
his August dues, despite prior warnings of the consequences that such
default entailed and despite Chief Steward Fuller's offer to assist him
in borrowing the money to pay his dues .2 Like the Trial Examiner,
we find, contrary to the General Counsel's contention, that Cavicchia
was expelled from the Respondent Union and was subsequently dis-
charged from his employment solely because of his dues delinquency
and not because of his former District 50 activities or his refusal to
consent to a dues checkoff.
The General Counsel contends that Cavicchia's discharge was not
protected for the reasons, among others, that he was not deliquent in
the payment of his August dues and that, even if he were, he had timely
tendered his accrued dues before his discharge.
' As the record , exceptions, and briefs adequately present the issues and positions of
the parties , the General Counsel' s request for oral argument is denied.
2 As shown in the Intermediate Report , the Respondent Union had similar trouble with
Cavicchia, when it was the bargaining representative of the Respondent Company's em-
ployees in 1945 and 1946 before it last supplanted District 50, United Mine Workers,
94 NLRB No. 76.
CHISHOLM-RYDER COMPANY , INC. 509
In support of his first argument, the General Counsel asserts that,
as Cavicchia joined the Union on July 30, 1948, a few days before the
expiration of the 30-day deadline prescribed in the contract and the
Act, he was not obligated to pay dues for that month and that there-
fore the Union improperly credited his initial payment of $1.50 as
July instead of August dues. We find no merit in this argument.
Having joined the Union in July, Cavicchia obligated himself to pay
the periodic dues accruing that month and it is immaterial that lie
could have avoided this liability had he delayed joining until August.
Indeed, Cavicchia himself recognized this obligation to pay the July
dues for not only did he pay it voluntarily but also at no time did he
claim that his initial payment should have been applied against his
August dues. Significantly, there is no evidence in the record-nor is
any contention made-that the Union's requirement that Cavicchia
pay the dues for the month he joined, in addition to the initiation fees,
was not "generally applicable to other members " or "uniformly re-
quired as a condition of acquiring . . . membership ," as provided in.
Section 8 (a) (3) of the Act. Nor is there anything in the Act that,
prohibits a labor organization holding a union-security contract from,
uniformly requiring applicants for membership to pay dues for the,
mouth they join. In these circumstances, our dissenting colleague's
assertion that by dismissing the complaint in this case , we are sanc-
tioning Cavicchia's discharge for failing to pay dues he was not legally
bound to pay is not warranted by the facts or the law.
Turning to the General Counsel's second argument, it is contended
that the Act, in any event, prohibited Cavicchia's discharge, be-
cause prior thereto he tendered his delinquent dues to the Union.
We do not so read the Act.
Section 8 (a) (3), which authorizes the execution of union-shop
agreements under specified conditions and permits discrimination to
that extent, provides in pertinent part:
... That no employer shall justify any discrimination against
an employee for nonmembership in a labor organization . . .
(B) if he has reasonable grounds for believing that member-
ship was denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and the initiation
fees unzi f ornnly required as a condition of acquiring or retaining
membership. [Emphasis added.]
Correspondingly, Section 8 (b) (2) makes it an unfair labor prac-
tice for a labor organization or its agents
to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection ( a) (3) or to discrimi-
nate against an employee with respect to whom membership in
such organization has been denied or terminated on some ground
1,510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than his failure to tender the periodic dues and the initia-
tion fees- uniformly required as a condition of acquiring or re-
taining membership. [Emphasis added.]
It is clear that to entitle an employee to protection under these
provisions where, as here, the union is not otherwise improperly
motivated in seeking his discharge; the employee is obligated to
tender "the periodic dues . . . uniformly required as a condition
,of . . . retaining membership." The quoted phrase plainly contem-
plates not only that the tender be in an amount uniformly prescribed
by the union, but also that it be made within the time uniformly
allowed by the union as a condition of retaining membership.
Whatever legislative history there is concerning the timeliness
of the tender, confirms the plain meaning of the text. Thus,
speaking of the union-security provisions of the Senate bill, which
the conferees later adopted in material parts the Senate Majority
Report stated that these provisions were designed to safeguard an
employee from compulsory discharge under a union-security agree-
ment "if the worker is not delinquent in paying his initiation fees
and dues."" ' [Emphasis added.] That which was implicit in the
Senate amendments was expressly provided in the House bill.' Sec-
tion 8 (d) (4) of the House bill stated that no union-security agree-
ment "may have the effect of denying employment or continued em-
ployment to any individual who on or before the time required
tenders to the organization the initiation fees and dues regularly im-
posed as a condition of membership therein." [Emphasis added.]
The House Conference Report did not note any difference in the
import of the language used in the Senate and House bills.
In the circumstances, to hold, as the General Counsel, urges, that
proviso (B) to Section 8 (a) (3) and Section 8 (b) (2) permit em-
ployee-members subject to a valid union-shop agreement to disregard
with impunity the union's uniform requirements respecting the time
for payment of "periodic" dues as a condition of retaining member-
ship, would be a distortion of the manifest sense of these sections.
Moreover, such an 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 im-
portant condition of membership, which unions are permitted to
impose.6 In the absence of a clear expression of congressional intent
to that effect, we are not persuaded that such a construction is
warranted.
8 H. Conf Rep . No 510, 80th Cong. 1st Sess . ( 1947), 41.
4 S. Rep. No. 105, 80th Cong., 1st Sess . ( 1947), 7.
5 H. R. 3020 , 80th Cong , 1st Sess. ( 1947).
6It 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.
CHISHOLM-RYDER COMPANY , ' INC. 511
In the present case, Cavicchia failed to perform his statutory
obligation to tender his periodic dues within the time uniformly
required as a condition of retaining his membership. As a conse-
quence, he became vulnerable to discharge under the Respondents'
union-shop agreement, upon his expulsion from the Union.7 As
the Union's constitution and bylaws did not provide for the restora-
tion of membership rights or prevent expulsion on payment of de-
linquent dues," Cavicchia's unaccepted belated tender could not bar
his discharge. This conclusion is in harmony with the well-estab-
lished legal principle that a tender to be effectual must be made with-
in the time fixed by law or contract, as the case may be.9
Accordingly, we find, as did the Trial Examiner, that neither the
Respondent Union in requesting, nor the Respondent Company, in
effecting, Cavicchia's discharge pursuant to their union-shop agree-
ment, violated the Act. We shall therefore dismiss the complaints
herein.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaints against the Re-
spondent Chisholm-Ryder Company, Inc., Niagara Falls, N. Y., and
the Respondents United Gas, Coke and Chemical Workers of America,
CIO, Local 235 and its Local President David Goodwin, Chief Steward
Harry Fuller, and International Representative Samuel Olfano, be,
and they hereby are, dismissed.
MEMBER MURDOCB:, dissenting :
The dismissal of this complaint by my colleagues, in my opinion,
is not in accord with either the facts or the law in this case. It is
my considered conclusion that the actions of the Respondents in this
matter clearly constitute violations of Section 8 (a) (3) and Section
8 (b) (2) of the Act.
There are a number of facts basic to an understanding of the issues
joined herein. The rationale of the majority decision rests upon a
determination that the complainant Cavicchia was legally discharged
for delinquency in the payment of dues under a legitimate union-
security provision of the parties' contract. This reasoning, in turn,
4 As Cavicchia was discharged following his expulsion from the Union , we find it un-
necessary to determine, as did the Trial Examiner , whether the union-shop agreement
involved in this case also permitted his discharge if he had only lost membership " in good
standing ." Cf. Firestone Tire and Rubber Company, 92 NLRB 1376.
8 Indeed, under the Union' s constitution , special dispensation by the International
president is necessary to restore a delinquent member to good standing after automatic
suspension for nonpayment of dues. There is no evidence that Cavicchia received this
dispensation.
1 6 Williston on Contracts Sec. 1810.
512 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
is based upon the finding that Cavicchia paid dues for July 1948,
but did not pay dues for August of that year, and that the resulting
delinquency was not cured by a subsequent tender of the amount al-
legedly due. These essential findings are not substantiated by the
record set forth in this case.
The Respondent Union and the Respondent Company, under au-
thority granted under Section 9 (e) of the Act, duly negotiated a
contract provision providing that "All present employees of Com-
pany within the bargaining unit, . . . shall, not later than the
thirtieth day following date of this agreement, as a condition of em-
ployment become and remain members of the Union for the dura-
tion of this agreement." [Emphasis supplied.] This provision was
made a part of the current contract on July 2, 1948. On July 30,
the last working day prior to the expiration of the 30 day grace
period for the acquisition of membership, the charging party, Cavic-
chia, complied with the terms of the agreement and paid the requisite
initiation feel° On August 2, Cavicchia paid 1 month's dues.
Cavicchia did not make further payment in the month of August
and, on September 1, the Union requested his discharge, a request
which was then revoked after Cavicchia's claim that he had been
granted an extension and pending a hearing before the executive
committee of the Local. This hearing, held on September 3, resulted
in a final and effective request for discharge. On the same day, but
prior to the hearing, and a final adjudication of delinquency by the
committee, Cavicchia tendered 2 months' dues to the president of
the local union and the payment was abruptly rejected. To conform
the result reached by my colleagues, with these facts, it is necessary
to hold that Cavicchia's first dues' payment, rather than logically
covering his first month's membership, instead applied retroactively
to the month of July-a period in which he was not, and was under
no legal compulsion to be, a member of the union. It is also neces-
sary to find that an attempted payment of dues only 3 days late
and prior to any formal and final adjudication of delinquency is
without force to prevent a summary discharge on the latter ground.
There are a number of factors which clearly indicate the funda-
mental error inherent in any finding that Cavicchia was delinquent
in the payment of dues. The majority opinion considers, although
the reasoning is not clear, that, inasmuch as acquisition of membership
was accomplished on the last working day of the month of July,
Cavicchia automatically became liable for dues for that entire month.
Secondly, that Cavicchia acquiesced in the union's action in crediting
10 While the majority opinion finds that Cavicchia joined "a few days prior to the
expiration" of the 30 -day grace period , actually , as found by the Trial Examiner , Cavicchia
waited until the last possible moment to acquire membership.
CHISHOLM- RYDER COMPANY, INC. 513
the payment for that month and thus now cannot be heard to com-
plain. The record is barren of any facts to support the first of these
assumptions. There is nothing in the constitution or bylaws of the
Union indicating that a new member must pay dues for the entire
calendar month in which he joins 11 Indeed the normal procedure
of such organizations would appear to date the liability from the day
membership was acquired. Moreover, in this case, the Union origi-
nally attempted to apply the initiation fee, submitted by Caviechia,
as dues for the months of May and June, a period predating even
the adoption of the union-security clause and an action either indi-
cating incompetent bookkeeping or an affirmative intention to squeeze
as much from the complainant as possible. The lack of any protest
at the time by Cavicchia surely cannot be construed, under the cir-
cumstances, as foreclosing any complaint on his part at a later time
when the results of the misapplied allocation became fatal to his
employment. V
There is a further, overriding consideration indicating the un-
tenable position of the majority decision on this issue. In allowing
only certain restricted forms of union security to be immune from
the general prohibitions of the Act, Congress specified that such
agreements could provide only for enforcement of membership "on
or after the thirtieth day"' following initial employment or_the ef-
fective date of the agreement.12 This Board has strictly construed
the provisions of the amended Act on this question and has frequently
held that contracts allowing a lesser period for the acquisition of
membership are void.13 Not only does the maintenance-of-member-
ship clause in the instant contract provide that membership be ac-
quired "not later than the thirtieth day following the date of this
agreement" but, by approving the actions of the Union in this in-
stance, the Board now holds that a union may compel the payment
of dues for the so-called 30-day grace period from employees whom
it may not force to join during that period.14 In other words, the
majority of my colleagues, who unquestionably would have found
11 The only provision of the Union 's constitution or bylaws which applies to dues pay-
ment procedure is Article I, Section 5 of the bylaws which provides that dues are payable
in advance for each month. This would appear to further strengthen the argument that
a payment on August 2 would normally be credited for that month . The negative reason-
ing of the majority that there is no evidence that the Union ' s requirement that Cavicchia
pay dues for the month in which he joined was not generally applicable or uniformly
required , of course , does not in any way substantiate the existence of such a requirement
so conspicuously absent from the formal rules of the organization.
12 Section 8 (a) (3). _
13 Sec Shepherd Manufacturing Company , Inc, 90 NLRB 2196, and cases cited therein
14 This position , of course , is in direct contradiction of the Board 's firm policy that 'a
union cannot require retroactive dues under a union-shop contract . See New York Ship-
building ' Corporation, 89 NLRB 1446 ; General American Aerocoach, 90 NLRB 239 and
cases cited therein. Moreover , the alleged fact that such a retroactive dues payment
was "uniformly required" and "generally applicable " does not, in any way, remove the
illegality of the requirement.
953841-52-vol 94-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it a violation of the Act if Cavicchia had been discharged for failure
to join the Union on July 1, 1948, now holds in effect that he could
be later discharged for not paying dues as of that date. Aside from
the incongruity of such a position, I do not believe the Act contem-
plated the imposition of such a duty during a period in which it spe-
cifically protects employees from compulsory assumption of other
obligations of union membership. Accordingly, as the proper al-
location of Cavicchia's initial dues payment would have removed the
alleged default in dues payments for the month of August, I would
find that the ensuing discharge based on dues delinquency for that
month was in violation of Section 8 (a) (3) and 8 (b) (2) of the Act.
Even assuming for the purposes of argument, however, that as of
September 1, 1948, Cavicehia owed dues for the month of August, I
cannot concur in a finding that he was lawfully discharged. After
hearing Cavicchia and other interested parties on September 3, 1948,
the executive committee of the Union requested his discharge. On
the same day, however, and prior to any formal and final action on
the part of the Uision, a valid tender of 2 months' dues was made
by Cavicchia to qualified officers of the Union. The majority deci-
sion holds that the Act does not prohibit a union, under these cir-
cumstances, from rejecting a legitimate offer of payment in order to
preserve a delinquency which may be used as the basis for a discharge.
I cannot agree. I am not persuaded that the Act, as written, sanctions
the extreme penalty of discharge where, as here, the employee tenders
his accrued dues before there is a final adjudication by the union that he
is delinquent. The statute, of course, does not specify in explicit terms
the time when an employee is required to tender his dues to a union
holding a duly authorized union-security agreement in order to be
entitled to the protection of the Act. However, committee reports
and congressional debates in the course of the statute's enactment
disclose clearly that Congress was not only intent upon giving a labor
organization a measure of protection from "free riders" who reap the
benefits while refusing to share the expenses, but also on the protec-
tion of employees who are willing to pay for their "rides" by tendering
their dues and initiation fees. It is only in the absence of such
tender of dues and initiation fees that a discharge of an offending
member is protected. For that reason I am reluctant to introduce
into the Act, irr the absence of clear , and explicit authority therein,
arbitrary time limitations set by individual labor organizations for
payment of such obligations which shorten the period and measure
of protection afforded employees .15 On the contrary, it appears
10 Indeed the adoption of such an interpretation is in violence of the basic rule of
statutory construction that provisos which create exceptions to a general statutory policy,
here the prohibition against discrimination in employment to encourage or discharge
union membership , must be strictly construed . See 2 Sutherland, Statutory Construction
( 3rd Ed. ) Sec. 4933.
CHISHOLM-RYDER COMPANY, INC. 515
reasonably plain from the language of the statute that a tender of
dues before the employees' good standing or membership in a labor
organization is terminated would constitute a sufficient compliance
with the terms of the Act. Such an interpretation would afford
proper recognition to the interests of both the employees and the
union. The union's source of income remains assured by the weapon
of discharge, while an employee's job is secure provided requisite dues
and fees are tendered before the union terminates membership for
failure to do so. The fear expressed in the majority decision that
such a policy might undermine the value of union-security provisions,
is, I believe, more speculative than factual 16 Nor is such a position
in conflict with the settled rules as to effectual tenders 17
As tender in this instance, of all real or alleged deficiencies in dues
was made before any final adjudication of Cavicchia's membership
status was completed by the Union, and as the Respondent Company
had knowledge of such tender, I would, on this ground also, find
violations of Section 8 (a) (3) and 8 (b) (2) in the resulting
discharge.
Intermediate Report
Messrs. Richard Lipsitz and John C. McRee, for the General Counsel.
Tuttle, Rice, Rice & Hustleby, by Mr. Robert L. Rice, Jr., of Niagara Falls, N. Y.,
for Respondent Company.
Mr. Bernard D. Levy, of Niagara Falls, N. Y., for Respondent Union.
STATEMENT OF THE CASE
Upon charges duly filed on September 13, 1948, by John Cavicchia, the Gen-
eral Counsel of the National Labor Relations Board, called herein respectively
the General Counsel and the Board, by the Regional Director of the Third Re-
gion (Buffalo, New York), issued complaints dated June 17, 1949, against
Chisholm-Ryder Company, Inc., herein called the Company, and against United
Gas, Coke and Chemical Workers of America, CIO, Local 235 and its Local
President David Goodwin, Chief Steward Harry Fuller, and International Rep-
resentative Samuel Olfano, herein called the Union and sometimes the Local,
the Company and the Union herein collectively called the Respondents, alleging
respectively that the Company had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as
1° Such hazards as envisaged by the majority opinion would appear based on the erroneous
interpretation that, were employees granted the opportunity to tender dues before final
adjudication , the employees would be determining the actual conditions of membership.
This interpretation assumes that employees could "disregard with impunity " the require-
ments for dues payments , a conclusion obviously rebutted by the continuing and unchal-
lenged authority of a labor organization to effectively request discharge after a modicum of
due process The instant case points up the far greater danger that, absent such protection,
a union may disregard the attempts of employees to comply with their rules and, with
undue dispatch , summarily secure the discharge of a technical delinquent.
11 while a tender must be made within the "time fixed by law or contract " to be effec-
tive, it is equally true that, except where time of performance is of the essence , a valid
tender may be made subsequent to the day of maturity . See 6 Williston on Contracts,
Section 1810.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARL
amended, 61 Stat. 136, herein called the Act, and that the Union had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of
the Act. On June 17, 1949, said cases were consolidated by order of the Re-
gional Director. Copies of the respective complaints and charges and of the
order of consolidation and notice of hearing were duly served on all the parties.
With respect to the unfair labor practices, the complaints alleged in sub-
stance that on or about September 3, 1948, the Company discharged John
Cavicchia for nonmembership in the Union although it had reasonable grounds
for believing that membership was denied or terminated for reasons other
than the failure of Cavicchia to tender the periodic dues and initiation fees
uniformly required as a condition of acquiring and retaining membership (in
violation of Section 8 (a) (3) and (1) of the Act), and that the Union caused
the Company to discharge Cavicchia whose membership had been terminated
by the Union on some ground other than for his failure to tender said dues and
initiation fees (in violation of Section S (b) (2) and 8 (b) (1) (A) of the Act).
The Company and the Union thereafter filed separate answers denying the
commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on August 9 and 10, 1949, at Buffalo,
New York, before George Bokat, the undersigned Trial Examiner duly desig-
nated by the Chief Trial 'Examiner. After the close of the hearing and on
about October 10, 1949, the undersigned notified the parties of his intention to
reopen the record for the purpose of affording them an opportunity to address
themselves to an aspect of the case not touched on at the hearing, but, in the
opinion of the undersigned, within the issues presented to him for deterniina-
tion. Thereafter, by motion dated December 6, 1949, the General Counsel
moved to amend the complaints herein so as to allege, in the alternative, that
the Company discharged Cavicchia at the request of the Union although the
Company had reasonable grounds for knowing that Cavicchia's membership in
the Union had not been terminated, and that the Union caused or attempted to
cause the discharge of Cavicchia because the Union claimed that he was not a
member in good standing although his membership in the Union had not been
terminated This motion was granted without objection, as were motions to
amend the respective answers of the Company and the Union.
Pursuant to notice, a hearing on the amendment to the complaints was held
in Buffalo, New York, on March 21, 19,50, before the undersigned. At both
hearings all parties were represented by counsel ; all were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence relevant to the issues. Decision having been reserved on the motions
of the Company and the Union to dismiss both the complaints and amended
complaints, they are disposed of as will hereinafter appear. The parties pre-
sented oral argument in the first as well as the reopened hearing, and filed
briefs with the undersigned. The Company also filed proposed findings of fact
and conclusions of law.
Upon the entire record in the case and from observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation, is engaged in the manufacture, sale,
and distribution of canning machinery equipment at its plant and principal office
in Niagara Falls, New York. During the year 1948 the Company purchased
supplies, equipment, and raw materials valued in excess of one million dollars,
CHISHOLM-RYDER COMPANY, INC . 517
of which about 70 percent was received from points outside the State of New
York. During the same period the Company's annual sales exceeded one mil-
lion dollars of which about 80 percent was sold and shipped to customers in
States other than the State of New York. I bud that the Company is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, CIO, Local 235, is a labor
organization within the meaning of the Act admitting to membership employees
of the Company.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of events
John Cavicchia, the charging party, whose discharge by the Company at the
request of the Union is the subject matter of this Report, was employed by the
-Company from April 21, 1941, until September 3, 1948.'
In 1945 and 1946 the Union was in contractual relations with the Company ;
in 1947, however, District 50 of the United Mine Workers succeeded the Union
as the exclusive bargaining representative. Cavicchia was active on behalf of
District 50, serving on the negotiating aril grievance committees, as a steward,
and as a teller at one of the Board elections won by District 50. On January 10,
1948, another election took place ; this time, however, with only the Union on the
ballot. Caviccliia openly campaigned for votes against the Union.
The Company entered into a collective bargaining agreement with the Union
on May 1, 1948. Following the winning of a union-apthorization election by the
Union, the parties on July 2, 1948, executed a supplemental agreement which
contained the following clause :
All present employees of Company within the bargaining unit, . . . shall, not
later than the thirtieth day following the date of this air cement, as a con-
dition of employment become and remain members of Union for the duration
of this agreement. [Emphasis supplied.]
The Company posted notices on July 6, calling attention that "Employees
within the bargaining unit are notified that they must become members of the
Union not later than August 1st." On about July 15 the Union posted the
following notice on the Company's bulletin boards:
ATTENTION!! ATTENTION!' ATTENTION ! !
ALL MEMBERS MORE THAN 30 DAYS IN ARREARS, BEGINNING
FROM THE DATE WHEN DUES ARE FIRST DUE, WILL NOT BE A
MEMBER IN GOOD STANDING AND WILL BE SUBJECT TO DIS-
MISSAL, IN ACCORDANCE WITH UNION SHOP CLAUSE. DUES ARE
DUE ON THE FIRST OF EACH MONTH IN ADVANCE.
MEMBERS NOT SIGNING A CHECK-OFF CARD, MUST PAY THEIR
DUES AT THE REGULAR MONTHLY MEETING THE SECOND FRIDAY
OF EACH MONTH.
(S) David Goodwin, per S. O.
DAVID GOODWIN,
President, Local #235-UCW-CIO.
Cavicchia joined the Union with extreme reluctance and waited until the last
working day of the month, Friday, July 30, before he tendered the $3 for initia-
Unless otherwise indicated all the events herein described took place in 1948.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion fees to Anthony Battaglia, the acting steward in his department.' When
Cavicchia received his receipt the following Monday for the $3 it was endorsed
as dues for the months of May and June. He protested to Battaglia, stating
he had joined the Union in July and wanted a corrected receipt for the $3 as
initiation fees. About the same time Cavicchia was informed that he owed $1.50
for dues for the month of July. Cavicchia paid and received a receipt for dues
for the month of July ; it was dated August 2, and also acknowledged receipt of
$3 for initiation fees.
Battaglia, while serving as acting steward, asked Cavicchia "many times" to
sign a checkoff card. Cavicchia "said he would never sign it as long as the CIO
was the union there." e At a regular union meeting on August 13, the Local
passed the following resolution :
Motion was made by McIntosh and seconded by Lambert that anyone who
has not signed the check-off card and has not paid the August dues owing
to the fact that the notices were not posted in time, will be granted time until
the last Tuesday in August (August 31). On that evening the financial
secretary will be at the Union Hall between seven and eight in the evening to
receive such dues. Anyone not having paid their dues at that time can be
declared delinquent and their card pulled.
The plant was shut down from August 13 until it reopened on Monday morn-
ing, August 30. On that morning the Union caused copies of the following notice
to be posted on all the bulletin boards, including the one in Caviechia's
department:
Attention!! Attention!! Attention ! !
Our agreement with Management requires all employees of Chisholm-
Ryder & Niagara Searchlight Co. to become members in good standing of
Local 235 United Gas, Coke & Chemical Workers of America C. I. O.
As some of the employees are not members in good standing it was voted
at our most recent meeting to allow them until Tue. Aug. 31, to do so. The
financial sect. will be at C. I. O. Hall that evening to receive dues of those
who have not signed check-off cards. Shop stewards may collect delinquent
dues of those who have already signed. This is final'
As of this time all but 2 and Cavicchia, of the approximately 300 union mem-
bers, had paid their dues. The 2, but not Cavicchia, showed up at the union hall
on August 31 and paid their dues. Cavicchia admits that he did not pay his
August dues but contends that Battaglia, as the acting steward of his department,
2 Battaglia took the place of Harry Florence, the regular steward in Cavicchia's depart-
ment, while Florence was on vacation from July 2G to August 13 Cavicchia testified that
about the middle of July he asked Earl Lambert, chief steward, for a membership card
and that Lambert refused, stating that Cavicchia was "not cooperative. We only want
cooperative fellows in our union that are going to stick with us." A few days later,
according to Cavicchia, he complained to David Goodwin about Lambert's refusal to
give him a card. Cavicchia quotes Goodwin as replying that "Lambert was right." In
view of Cavicclua's testimony that he waited until practically the last day to join and
his admission that Steward Florence had solicited his membership "about the forepart of
July," I cannot credit Caviechia's testimony as to this incident over Goodwin's specific
denial and despite Lambert's failure to testify.
8I do not credit Caviechia's denial that Battaglia had ever requested him to sign a
checkoff authorization. When Steward Florence had solicited Cavicchia to join the Union
in the early part of July, he evidently had also asked him to sign a check-off card.
Cavicchia made an obscene remark as to what Florence could do with the cards
- S Caviechia's testimony that he did not see this notice or the-one of July 15 until aftei
his discharge is not credited.
CHISHOLM-RYDER COMPANY, INC . 519
gave him until Friday, September 3, to pay the delinquent dues. Battaglia
disputes Caviechia's version of this incident. The disposition of this conflict
in testimony has an important bearing on the final determination of the issues
herein.
I will first relate Cavicchia's version. On Monday morning, August 30,
Cavicchia observed Harry,Fuller, who had replaced Lambert as chief steward,
hand Battaglia "a, stack of little cards." Battaglia then approached Cavicchia
and said, "Your name is first here. The card is right on top. You are behind
in your dues." Cavicchia replied, "I have got no money to pay my dues
now . . . I'll pay my dues Friday." Battaglia said, "Okay."
According to Battaglia, Fuller asked him to distribute four or five check-off
authorizations but Battaglia informed Fuller that Florence, the regular steward,
was back to work and to give the cards to Florence. Battaglia volunteered how-
ever to hand Cavicchia one of the cards, and did so. No mention was made of
delinquent dues. Within the next hour Cavicchia asked Battaglia if he could
have until Friday to pay his dues. Battaglia replied that it was "okay" with
him, but that he was no longer the steward since Florence had returned to work
and told Cavicchia to see Florence. Cavicchia replied, "The hell with Florence."
I am persuaded by a careful analysis of the testimony, and the demeanor of
these witnesses, that Battaglia is more reliable and I credit his testimony. It
would serve no useful purpose in reciting the remaining events that led to the
discharge of Cavicchia to detail the conflicting testimony. The following findings
are my own construction of the essential facts based on my evaluation of the
witnesses. In general, I have not credited Cavicchia where his testimony is
irreconcilable with that of union or company witnesses. This does not mean
that I have credited, at face value, all of the testimony given by the union wit-
nesses. Some were more accurate and reliable than others. Particularly, I was
favorably impressed by Battaglia, Fuller, and Samuel Olfano.
On Tuesday, August 31, Fuller asked Cavicchia "if he was going to pay his
dues," and Cavicchia replied that he had been granted an extension by Battaglia.
Fuller pointed out that since Battaglia was no longer the acting steward he had
no authority to grant Cavicchia the extension. Fuller offered to "vouch" for
Cavicchia in borrowing $1.50 from an individual who peddled coffee in the plant
so that Cavicchia could pay his dues but Cavicchia refused.
On September 1, the Union sent the following letter to the Company :
CI.A MAUaER,
• Sec.-Treas., Chisliolnt-Ryder Co.,
Niagara Falls, N. Y.
DEAR MR. MAURER : In view of the fact that Messrs. Kotarba and Chisholm
are out of•town, we are addressing this letter to you, considering you as
top-management.
Section 4 of the supplement of our contract allows us no alternative but
to ask management for the immediate dismissal of John Cavicchia, Clock
#209.' .His Union dues for August have not been paid, consequently he is
not a member in good standing i His shop Steward reminded him of the fact
previous to the deadline, and the Steward was grossly insulted by Mr.
Cavicchia.
5 Section 5 of the bylaws of Local 235 of the Union provides :
The members shall cease, to be in good standing in the Local Union when one month
in arrears in dues Dues are payable in advance, and where no check-off card exists,
must be paid on meeting night, but not later than the last day of the month due.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trusting that you will take care of this matter immediately, we remain
Very truly yours,
(S) David Goodwin,
DAVID GooDwiN,
President, Local #235-UCIV-CIO.
(S) Harry 0. Fuller,
HARRY 0. FULLER,
Chief Steward.
(S) Samuel Olfano,
SAMUEL OLFANO,
International Rep.
The Company received the letter, and Cavicchia a copy, the following day. On
the same day, Cavicchia, after speaking to Florence and possibly Fuller, as to
the meaning of the letter, went to see Olfano, international representative of the
Union e Cavicchia told Olfano that Fuller had granted him an extension of
time to pay his dues, and "after having been given this extension that they
wouldn't take his money." I quote from Olfano's testimony :
I told him at that time that that was not the story that I had heard from
Fuller. That Fuller had told me that Cavicchia had approached Fuller and
told him that Battaglia had given him an extension. I said the stories are
conflicting. However, I'll call up the office the first thing in the morning
and I'll tell them to disregard the letter. I'll call a special meeting, at which
time I'll question the stewards with whom you had contact. If your story
is true that any one of them gave you an extension then I'll see that they
abide by that extension."
s :z ^ s * * •
I told him if his story was substantiated that I would recommend that
they give him the extension and, however, if his story was not substantiated
then I would do otherwise. '
The Union asked the Company to withhold action on its requested discharge of
Cavicchia because it was going to give him a hearing on the matter on Friday,
September 3. On Friday morning Cavicchia offered to pay Goodwin $3, pre-
sumably the September as well as the August dues. Goodwin refused, saying
that he had no authority to accept the dues, but informed Cavicchia the Union
was going to give him a hearing that morning and that Cavicchia would get the
benefit of any doubt.
The executive committee of Local 235, consisting of Goodwin, Fuller, and
Herbert McIntosh, listened to Cavicchia, Battaglia, and Florence on Friday
morning in order to determine whether Cavicchia had obtained an extension of
time to pay his August dues. Olfano was present during part of the meeting.?
6 Caviechia claims that he also spoke to Goodwin that day about the discharge letter.
While it is entirely plausible that he did, I do not credit Cavicchia's testimony over
Goodwin's denial that Goodwin indicated that the Union was motivated in sending the
letter because "the Company was complaining to the Union, that is, the Union was pro-
tecting fellows that the Company wanted to get rid of."
° Cavicchia, who told the committee that Battaglia had granted him an extension of
time to pay his dues and again offered to pay his dues as he had to Goodwin that m6riiing,
testified that Olfano said he "was nothing but a hardheaded U M. W. man and the
company nor the union would tolerate such men," and then left the room after granting
the committee authority from the International union to do as It saw fit . Olfano testi-
fied that he did not learn of Cavicchia's past activity on behalf of the United Mine Workers
until after this meeeting The quoted remark attributed to Olfano by Caviechia Is not
credited.
CHISHOLM-RYDER COMPANY, INC. 521
The committee voted unanimously not to accept Cavicchia's explanation ; "that
the letter to the company stands and that [Cavicchia's union] card is pulled." -
When the Company first received the Union's request to discharge Cavicchia,
Clair S. Maurer, the Company's secretary, discussed it with Superintendent
William Kosoc and both "felt that according to the agreement between the
Company and the Union" they would have to honor the Union's request. Ac-
cordingly, when the Union decided to stand by its initial decision, Kosoc informed
Cavicchia that he was discharged. In the course of the conversation, Cavicchia
admitted that he had not paid his dues. Both Maurer and Kosoc individually
assured Cavicchia that the Company would reinstate him if the Union agreed.'
Shortly after Cavicchia's discharge, Olfano advised him that (1) he could ap-
peal to the Local and ask for a hearing, (2) in the event the decision was un-
favorable, he could appeal to the regional director of the Union's district office,
and finally, (3) could appeal to the International Union itself. Accordingly, to
quote Cavicchia, "I wrote an appeal to the union local body to put me back to
work, put me back in the union, and they wrote me a letter, told me when to ap-
pear at a local meeting. I went to the local meeting." [Emphasis supplied ]
Cavicchia's appeal was heard on September 10. Cavicchia was not allowed to
participate in the meeting as'a union member.'
I now quote from the minutes of the union meeting of September 10:
At this time it was moved the question be raised on the consideration of
application of expelled member for reinstatement.
His letter was read and reasons for his action and request was discussed
at length. Many of the statements in his letter did not coincide with the
facts as- set forth by his steward Harry Florence, his acting steward A.
Battaglia, his chief steward Harry Fuller, and president Goodwin and the
district representative Sam Olfano.
He was invited to attend a meeting at the Ryder plant and the "case stated
to him. . . . At August, after having been informed in person and by
a notice on the bulletin board of the deadline for paying dues, he again
disregarded all notices and the advice given him. He let the deadline of
August 31st pass. He disregarded the notice given that the financial secre-
tary would be at the Union Hall between seven and eight in the evening
and all dues must be paid at or before that time or cards would be pulled.
Cavicchia was invited to state his case to the membership. He repeated
what he had written in his letter and asked for reinstatement and back pay
for time lost. Said he had no money after his return from his vacation.
That he intended to pay on September 3rd, and so forth. Pointed out to
him that his dues should have been paid before his vacation. That he could
have obtained money from the office if he requested it.
That he insultingly refused to sign a check-off card. Mr. Goodwin had
granted him an extension in July. That he had made false statements many
times. That his steward Harry Florence had urged him to attend his dues.
All requests and advice he insultingly refused.
Mr. Olfano reported that after an interview with Cavicchia and talking
to Battaglia, he made three different trips to the Ryder plant to assure him-
self that Cavicchia was getting a square deal.
' Cavicchia's testimony that Kosoc told him that he would "bear down" harder on
Cavicchia if he did return to work, is not credited over Kosoc's denial.
' By letter dated September 8, the recording secretary of the Local notified Cavicchia,
.,you will not be allowed to enter the meeting until your presence is requested by the
membership."
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a long discussion he was asked to retire. A motion was made by
St. Onge and seconded by McIntosh and passed unanimously that the mem-
bers approved the action of the committee in asking the dismissal of Ca-
vicchia, and the recording secretary was instructed to so inform him by
letter.
Meeting adjourned. [Emphasis supplied.]
After being advised of the Local's decision, Cavicchia did not avail himself of
the other appeals afforded to him by the constitution of the International or
of his right to utilize the grievance machinery of the contract.
B. Concluding findings
The first issue to be resolved is that raised by the original complaint, whether
the Union terminated Cavicchia's membership and caused his discharge for
reasons other than the nonpayment of dues in violation of Section 8 (b) (2)
and 8 (b) (1) (A), and whether the Company violated Section 8 ( a) (3) and
8 (a) (1) inpcquiescing in the Union's demand and because it had reasonable
grounds for believing that the Union's actions were for reasons other than
Cavicchia's nonpayment of dues.
As to this issue the General Counsel contends :
(1) That Cavicchia was not obligated to pay dues prior to-August 1948 and
that the dues he paid the early part of August should have been credited for
August instead of July dues and therefore he was illegally discharged for non-
payment of August dues. He bases this argument primarily on the fact that
under the supplemental agreement all employees in the bargaining unit had to
become members of the Union "not later than the thirtieth day following the
date of the agreement," and since the execution date was July, 2, "Cavicchia
was not obligated to become a member of the Union during the entire month of
July." While Cavicchia could have waited until August 1 to join, the fact re-
mains that he joined during the month of July, and as the General Counsel
impliedly concedes, those employes joining in July would be obligated for the
July dues. The General Counsel also concedes, as the facts show, that Cavicchia
knew that the Union was crediting his August payment for the July dues 10 I
find this contention to be without merit.
(2) That even if Cavicchia was obligated to pay the August dues, he received
a valid extension to September 3 and offered to pay on that day. Since I have
found as a fact that no such extension was granted to Cavicchia, this contention
must fall.
(3) That regardless of contentions (1) and (2), the Union requested Ca-
vicchia's discharge for some reason other than his failure to pay dues The
Union, under its current contract with the Company had not requested the dis-
charge of any employee other than Cavicchia. All the employes had received
ample warning when the Union posted notices on about July 15 that "All mem-
bers more than 30 days in arrears, ... will not be a member in good standing
and will be subject to dismissal." On August 30 the employees who were in
arrears were notified they had until the next day to pay their dues and that
Y° When Cavicchia was mistakenly given a receipt for May and June dues instead of
for the initiation fees, he said to Battaglia , "I was joining in July and I wanted this
here made as initiation fees 11 1
CHISHOLM-RYDER . COMPANY, INC. 523
"This is final." All paid their dues except Cavicchia. On August 31 Fuller
offered to vouch for Cavicchia so that he could borrow the money for his August
dues. Cavicchia refused. Cavicchia had a previous record of failing to pay his
dues on time." When Cavicchia claimed that he had received an extension to
pay his August dues the Union gave him a bearing, and if his story had been
substantiated, the Union would have withdrawn its discharge request. I am
persuaded by the preponderance of the, testimony that the Union requested the
discharge of Cavicchia because of his nonpayment of dues. In reaching this
conclusion, I have considered the circumstance that the Union's letter request-
ing Caviccbia's discharge refers not only to his nonpayment of dues but also to
"the Steward" being "grossly insulted by Mr. Cavicchia " I have previously
found that this incident occurred when Steward Florence solicited Cavicchia to
sign a check-off card and Cavicchia obscenely told Florence what he could do
with the card, but I still find, in view of all the evidence, that the motivating
factor was Cavicehia's failure to pay his dues. Or, put another way, the General
Counsel has failed to persuade me by a preponderance of the evidence that the
Union, in seeking his discharge, was motivated by Cavicchia's activity on behalf
of a rival union or his persistent refusal to sign a check-off authorization and
continued opposition to the Union.
The underlying reason for the Union's decision is, I believe, aptly expressed by
Chief Steward Fuller, _ "I feel that rules are made not for one person but for
everybody and Cavicchia should follow them as long as I or the next person
do." As the Supreme Court quoted with approval in the Colgate case,' a labor
organization has the "right . . . to reject or expel persons who refuse to abide,
by any reasonable regulation of lawful policy adopted by the Union."" I find
contention (3) to be without merit.
The remaining issue to be resolved is that raised by the amendment to the
consolidated complaint, that the Respondents violated the Act when the Com-
pany discharged Cavicchia at the Union's request when they both were aware at
the time that Cavicchia's membership in the Union had not been terminated.
This issue arises because of the following circumstances. It will be remem-
bered that the contract in effect at the time of Cavicchia's discharge provided
that employees shall "become and remain members of Union for the duration
of this agreement." It will also be remembered that the Union's letter of
September 1 to the Company referred to this section of the agreement as author-
izing Cavicchia's discharge, the letter stating, however, that "he is not a member
in good standing." Nowhere in the agreement, the validity of which is not
it When the Union had contractual relations with the Company in 1945 and 1946,
the contract contained a union-shop clause. Battaglia was then financial treasurer of
the Local and the grace period for payment of dues was 90 days. According to the
credited and undenied testimony of Battaglia, Caviechia always waited the full 90 days
before paying his dues:
Many times he was three and a half months and I gave him time go it went
on like this month after month. The president got wind of it and turned his name
into the company. The superintendent came over. Johnny was thrown out of
the plant for four days with another member because he was delinquent three and
a half months, even four months And he stayed out four days. Finally he came
back and he paid his dues and we accepted him back at that time. I was still
the treasurer and I accepted his money.
12 Colgate-Palmolive-Peet Co v N L It B , 338 U. S 355.
'a See also the proviso to Section 8 (b) (1) (A) of the Act.
0
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned, is there any written requirement as such that Cavicchia, as a condi-
tion of employment, maintain his membership in the Union in good standing"
It is the contention of the General Counsel that, since Cavicchia was not
formally or properly expelled from the Union under the conditions established
by the constitution of the International Union," he was still a union member
when discharged, and therefore met the requirement of the very agreement
upon which the Respondents now rely as legal justification for the discharge
under the provisos to Section 8 (a) (3) of the Act.
It is the contention of the Respondents that prior to his discharge Cavicchia
had been expelled from membership in the Union following a hearing before a
properly constituted executive board in which he had voluntarily participated and
submitted to its jurisdiction, and therefore waived the technicality of receiving
the 10 days' written notice required by the International's constitution.
Cavicchia admitted that on September 2 Goodwin warned him that failure to
pay his dues would lead to expulsion from the Union. Although Cavicchia testi-
fied that he never received any written or oral charges from the Union he ad-
mitted he understood that the purpose of the September 3 meeting of the execu-
tive committee was because he had not paid his August dues. I credit the testi-
mony of Goodwin and McIntosh that when the executive committee voted to
"pull" Cavicchia's membership card, it meant a vote to expel Cavicchia from
the Union 10 That Caviechia understood he was expelled is clear from the record.
Cavicchia consulted with Stephen McMullen, regional director of the Interna-
tional, and asked "hun what procedures could I take to get back into the union
and get back to work."" To quote Cavicchia again, "I wrote an appeal to the
union local body to put me back to work, put me back in the union, . . .
At no time did Cavicchia protest his failure to receive the 10 days' written
notice of changes. He was summoned to appear before a tribunal having
jurisdiction of the subject matter involved and submitted without protest to
its jurisdiction. The matter of notice being personal to Cavicchia he could
14 That Cavicchia was not a member in good standing on September 1 is clear As
stated above Section 5 of the Local's bylaws provides that "members shall cease to be
in good standing in the Local Union when one month in arrears in dues "
15 Article • VIII, Section 1 of the constitution provides that members "may be fined,
suspended or expelled" for "Refusing, or wilfully neglecting to pay dues " Section
8 provides : "Where the charges consist solely of non-payment of financial obligations, . .
chaiges may be filed by any member The Local Executive Board shall serve as the trial
board and its decision shall be final. The Local Executive Board shall commence hearing
the charges after 21 days after they are filed and shall cause written notice to be served on
the accused in person or by registered mail not less than ten (10) days prior to the hearing"
Cavicchia received a copy of the letter requesting his discharge on September 2 and was
given a hearing before the local executive board on September 3. Assuming that the
discharge letter constituted written notice of charges, it is clear that Cavicchia did
not receive the 10 days' notice required by the constitution. There is a conflict, how-
ever, between Section 8 of the constitution and Article VI Section 2 of the Local's bylaws
which provide : "All charges against a member, except charges of disturbing Local Union
meeting or non-payment of dues, shall be in writing, setting forth the charge, and when
committed " I find that the constitution of the International is controlling.
16 It should be remembered that the Local voted on August 13 that any member not
paying the August dues could have his membership card "pulled."
14 McMullen, who investigated Cavicchia's discharge shortly after the event, "under-
stood that lie had been expelled for non -payment of dues." Both McMullen and Oltano,
when they advised Cavicchia as to what steps he could take to appeal the decision of the
executive committee , did so on the basis of treating him as an expelled union member.
The Local (lid likewise, for on September 10 when it heard Cavicchia's appeal he was
not allowed to enter the meeting until his presence was requested by the menibei ship.
The minutes of that meeting pertaining to Cavicchia start with the following sentence
"At this time it was moved the question be raised on the consideration of application of
expelled member for reinstatement "
0
CHISHOLM-RYDER COMPANY, INC. 525
waive it explicitly or by acquiescence 19 I find that Cavicchia waived the 10
days' written notice prescribed by the constitution of the International, and
had been expelled from the Union prior to his discharge on September 3.
I am also of the opinion that even if Cavicchia had not been properly expelled
from the Union, his discharge would not have been a violation of the Act by
either Respondent. I have found that the Union sought the discharge of Cavic-
chia because he failed to tender his periodic dues and not for some arbitrary
or discriminatory reason. The Respondents having conformed to the basic
legislative intent, as I interpret the meaning of Section 8 (b) (2) and proviso
(B) of Section 8 (a) (3), I can see no warrant, under the facts here disclosed,
for a strict, literal interpretation of the valid union-shop contract executed by
them 19 Both Respondents interpreted the contract so as to permit the discharge
of any employee who was not a union member in good standing despite the
narrower language in the contract itself. The phrase in question is not so
clear-cut as to be susceptible of but one construction. Under the circumstances
of this case, it was not unreasonable for the parties to interpret the phrase
"remain members" as encompassing the requirement of fulfilling the normal or
usual obligations of membership such as the payment of dues.20 Nor is there
any adequate reason, based on the record as a whole, for questioning the good
faith of the Respondents in acting on their understanding that the agreement
required the employees to maintain good standing in the Union as a condition of
employment.
In conclusion, I find that the Respondents did not violate the Act. It is
therefore recommended that the complaint against the Union and the complaint
against the Company be dismissed in their entirety.21
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rule's and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceedings
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall
designate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203 46, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
19 See Matter of Malloy, 278 N. Y. 429; People ex rel Deverell v. Union , 118 N. Y. 101.
19 Provisos should be construed to conform with the legislative intent and no presump-
tion arises because of statutory form that interpretations should be strict. See Public
Service Company of Colorado , 89 NLRB 418 , and cases cited therein.
20 Nor can Cavicchia claim to have been misled by the bare wording of the union-shop
clause itself because he , as well as the other employees , were warned on July 15, that
failure to maintain their membership in good standing would subject them to dismissal.
21 The Company submitted separately numbered proposed findings of fact and conclu-
sions of law. I accept, all of the proposed findings of fact except 13, 20, and 27, which
are rejected. I accept all of the proposed conclusions of law except 5 and 10, which
are rejected.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
THE M. W. KELLOGG COMPANY 1 and LODGE No. 790, INTERNATIONAL
ASSOCIATION OF MACHINISTS
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL,
AND ITS LOCAL UNION No. 943 and LODGE No. 790, INTERNATIONAL
ASSOCIATION OF MACHINISTS. Cases Nos. 16-CA.-182 and 16-CB-7.
May 16,1951
Decision and Order
On September 15, 1950, Trial Examiner Euguene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent Com-
pany and the Respondent Unions filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made at the hearing by the
Trial Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case,2 and for the reasons hereinafter stated finds merit in certain
of the Respondents' exceptions.
The Trial Examiner found, among other things, that at the time
when the alleged discriminatees sought employment in July 1949, the
Company was following a practice it had earlier adopted of hiring
only members of the Carpenters for millwright jobs; that pursuant
to that practice, these individuals were not admitted by the guards to
the Company's property because they did not have referral cards
from the Carpenters; and that the practice in question had been caused
by the Carpenters by virtue of the fact that the Carpenters' local
bylaws and trade rules, the existence of which had been communicated
to the Company, presented a clear threat of strike if nonmembers
of the Carpenters were hired for millwright work. He concluded
The name of the Respondent Company appears as amended at the hearing.
' As the record, the exceptions , and briefs , in our opinion , adequately present the issues
and positions of the parties, the Respondents' request for oral argument is hereby denied.
94 NLRB No. 74.