Ferro Stamping and Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 17, 1951

93 N.L.R.B. 1459 (N.L.R.B. 1951)

FERRO STAMPING AND MANUFACTURING CO . 1459
CONCLUSIONS OF LAW
1. American Federation of Radio Artists, affiliated with Associated Actors and
Artistes of America, AFL; and International Brotherhood of Electrical Workers,
AFL, are labor organizations within the meaning of Section 2 (5) of the Act.
2. All announcers employed by Respondent at his Radio Station KDRO, in
Sedalia, Missouri, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. American Federation of Radio Artists, affiliated with Associated Actors
and Artistes of America, AFL, was on May 15, 1950, and at all times material
herein, the exclusive representative of all the employees in the above-described
unit for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing on or about May 20, 1950, and at all times thereafter to bargain
with American Federation of Radio Artists, affiliated with Associated Actors
and Artistes of America, AFL, as the exclusive representative of the employees
in the above-described appropriate unit, the Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Robert
Younger and James R. Harvey, thereby discouraging membership in American
Federation of Radio Artists, affiliated with Associated Actors and Artistes of
America, AFL, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
FERRO STAMPING AND MANUFATURING Co. and MARY MIRANDA
INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 753, C. 1. 0.,
and MARY MIRANDA
INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 753, C. 1.0.,
and BLANCHE WOODIN. Cases Nos. 7-CA-180, 7-CB-32, and
7-CB-23. April 17,19-51
Decision and Order
On October 25, 1950, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in 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 Inter-
93 NLRB No 252.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other alleged unfair labor
practices and recommended that the complaints be' dismissed with
respect to such allegations. Thereafter, all the parties filed exceptions
to the Intermediate Report and supporting briefs.
On March 8, 1951, the Board heard oral argument at Washington,
D. C., in which all the parties participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the e4 ire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the modifications and additions
noted below.
1. For the reasons set forth in the Intermediate Report,' we agree
with the Trial Examiner that the Respondent Union violated Sec-
tion 8 (b) -(5) of the Act by requiring the "old" employees to pay a
larger initiation fee than the "new" employees as a condition of secur-
ing membership after August 31, 1948, the effective date of the union-
shop clause in its agreement with the Respondent Company, because
the "old" employees previously refused to join that organization when
they were not legally bound to do so. Such a distinction in initiation
fees which is based on a prior exercise by an employee of his statutory
right to refrain from joining a labor organization is plainly "discrim-
inatory under all the circumstances" within the meaning, of Section 8
(b) (5). The Respondent Union's contention that the difference in
initiation fees was dictated by consideration of the greater benefits
the "old" employees enjoyed under the contract is refuted by the
evidence.
2. We agree with the Trial Examiner that the Respondent Union
violated Sestion 8 (b) (2) and (1) (A) in requesting, and the Re-
spondent Company violated Section 8 (a) (3) and (1) in effecting,
the discharge of employee Miranda because of her failure ^to acquire
membership in the Respondent Union, which was conditioned on pay-
ment of a $15 discriminatory initiation fee. Like the Trial Examiner,
we find that the union-shop agreement did not protect the discharge as
the Company had reasonable grounds for believing that membership
'Like the Trial Examiner, we find, contrary to the Union's contention, that evidence
concerning the Union 's initiation fee policy before the effective date of the union-shop
prousion was clearly admissible to explain the genesis of the $15 initiation fee How-
ever, we do not believe. as did the Trial Examiner, that the record sufficiently suppoi is
his conclusion that between July 29 and August 20 , 1948 , the Union-pursued a policy
of charging older employees a larger admission tee than newer employees But this dis-
agreement does not affect our finding of a violation of Section 8 (b) (5) after August
31. 1948
In Section III, D. of the Intermediate Report , the Trial Examiner inadvertently referred
to the August 31, 1948, date as August 31, 1949
FERRO STAMPING AND MANUFACTURING CO. 1461
was not available to Miranda on the same terms and conditions gen-
erally applicable to other members, and that membership was denied
for reasons other than her failure to tender the initiation fees uni-
formly required as a condition of acquiring membership.
The Respondent Union contends that it could not be found to have
violated Section 8 (b) (2) for the reason, among others,2 that Miranda
failed to perform her statutory duty to join, even though it meant
paying the $15 initiation fee. It argues that the union-shop agree-
ment legally obligated Miranda to join as a condition of employment
and to pay the required discriminatory initiation fee, which was not
excessive .3 Recognizing, on the other hand, that Miranda also had a
statutory right not to pay a discriminatory initiation fee, the Union
asserts that her remedy lay with the Board to recover the-overcharge.
This attempted accommodation of conflicting rights and obligations
is based on an erroneous premise that they are independent of one
another. Section ' gives employees the right to refrain from joining
a 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 in Section 8 (a) (3)." And Section 8
(a) (3), as implemented by Section 8 (b) (5) and 8 (b) (2), forbids
a labor organization from exacting a discriminatory initiation fee as a
prerequisite to acquiring membership. In these circumstances, we
find that the Act did not obligate Miranda to submit to this discrimi-
nation and to seek her remedy for the overcharge from the Board. A
contrary conclusion would not only permit the Union to benefit from
its own wrong but would also require the assumption that Congress,
which was concerned with protecting employees against the imposi-
tion of discriminatory initiation fees, intended nonetheless that em-
ployees pay a discriminatory fee in order to retain their jobs. Such
a result or intention cannot be imputed to Congress without doing
violence to the scheme and purpose of the Act.4
3. The Trial Examiner found that the Union violated Section 8 (b)
(2) and (1) (A) of the Act by causing and attempting to cause the
Company to discharge employee Whitehead. He found that, as
Whitehead had delivered to the Union a written authorization to
check off dues before his alleged default, he fulfilled his statutory
2 In agreement with the Trial Examiner , we find no merit in the Respondent Union's
contention that its request for Miranda 's discharge did not amount to "cause" within the
meaning of Section 8 ( b) (2). Sub Grade Engineernnq Company, 93 NLRB 406
3 The Union concedes that if the initiation fee were excessive or otherwise prohibitive in
amount Miranda would not be obliged to pay it and this argument would not be applicable.
But Section 8 (b) (5) consider, discriuunatoiv and excessive initiation tees equally
unlawful
4 As Miranda was privileged to refuse to join the Union because of the discriminatory
initiation fee exacted as a condition of hecomang a member, tse find, contrary to the
Union ' s and the Company 's contention , that it would not effectuate the policies of the Act
to deny her back pay for failing to submit to the discrimination on the theory that she
was obligated to mitigate damages
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to tender periodic dues uniformly required by the Union
as a condition of retaining membership, and that therefore the union-
shop contract did not sanction the discharge. Tlie Trial Examiner,
however, absolved the Company of any liability under the Act because,
in honoring the Union's request, it did not have reasonable grounds
for believing that Whitehead's membership was terminated for reasons
other than his alleged failure to tender his periodic dues. We concur
in the Trial Examiner's findings and conclusions.
In addition to the other contentions which the Trial Examiner
properly rejected, the Union argues that the allegations of the com-
plaint respecting Whitehead's discharge should be dismissed on the
ground that no cliarge of discrimination against Whitehead was filed
and served within 6 months after the occurrence of the alleged unfair
labor practice, as provided in Section 10 (b) of the Act .5
The facts relevant to a disposition of this contention are briefly
,these: On December 1, 1948, employee Miranda filed charges against
the Union and the Company alleging, among other things, that she
was unlawfully discharged because of her refusal to pay a discrimina-
tory initiation fee required as a condition of securing membership in
the Union.° Thereafter, on January 11, 1949, Whitehead was dis-
charged for the asserted reason that he failed to maintain his member-
ship as provided in the Respondent's union-shop agreement. This
discharge was included in Miranda's second amended charges filed on
August 26, 1949, 71/2 months after Whitehead's discharge, but was
not mentioned in her first amended charges filed on May 5, 1949.
Thereafter, the complaints alleging Whitehead's discriminatory dis-
charge were issued herein.
In agreement with the Trial Examiner, we find, contrary to the
Union's contention, that the complaints properly included the alle-
gations respecting Whitehead's discharge. The rationale for our
holding has been stated by the Board in Cathey Lumber.? There the
Board, after discussing the function of a charge under the original
Act, explained that (pp. 162-163) :
... the function of the charge continues unchanged in the
amended Act, that is, that when filed the charge sets in motion the
Board's investigatory machinery in order to ascertain whether or
not a complaint should issue. As there is no requirement that
the charge set forth each unfair labor practice allegation to be
litigated, the practice of enlarging upon the charge to include in
6 A similar contention was urged with respect to employee Stovac, whose discharge we
hereinafter find was not violative of the Act.
6 Employee Woodin also previously filed a charge against the Union in Case No . 7-CB-23,
alleging violations of Section 8 (b) (1) (2) and (5) based on the Union's alleged dis-
criminatory admission requirements , and coercion of employees to join the Union and
sign checkoff cards. A clarifying amended charge was filed by her on May 5, 1949.
7 Cathey Lumber Company, 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5).
FERRO STAMPING AND MANUFACTURING CO. 1463
the complaint allegations of unfair labor practices uncovered
during the investigation likewise continues unchanged under the
amended Act-but with this important exception made necessary
by the purpose of the limitation period imposed by the proviso :
that the complaint shall not include allegations of any unfair
labor practices occurring more than 6 months prior to the filing
and service of the charge initiating the case.... the proviso to
Section 10 (b) merely extinguishes liability for those unfair labor
practices which were committed more than 6 months prior to the
filing and service of the charge initiating the case, and ... a com-
plaint may lawfully enlarge upon a charge if such additional un-
fair labor practices were committed no longer than 6 months prior
I
to the filing and service of such charge.
It follows therefore that once the Board's jurisdiction is properly
invoked by the timely_ filing and service of a charge, any unfair labor
practices thereafter committed by a respondent and uncovered while
the charge is being investigated becomes cognizable by the Board and
may be included in the complaint. In the present case, Whitehead
was discriminatorily discharged while Miranda's charges were, being
investigated. In these circumstances, we find that Section 10 (b) did
not preclude the inclusion in the complaints of the allegations respect-
ing the unlawful discrimination against Whitehead. The fact that
this discharge was mentioned in Miranda's second amended charges
filed 71/2 months later is immaterial as the complaints could prop-
erly have alleged this discharge without further amending Miranda's
charges.
In any event, we find that Miranda's first amended charges, which
were filed oil • May 5, 1949, 4 months after Whitehead's discharge, are
sufficient to support the complaints herein. As the Board held in
Cathey Lumber; the 6-month limitation in Section 10 (b) extinguished
liability for unfair labor practices committed more than 6 months
prior to the filing and service of the charge, but did not prevent the
Board from remedying any unfair labor practice committed within
6 months of that date, even though they were not particularized in the
charge." As the discrimination against Whitehead occurred within
6 months of the filing and, service of the first amended charges, we find
that it was properly alleged in the complaints.
4. We agree with the Trial Examiner that employee Stovac lost his
membership in good standing required by the Respondents' union-
shop agreement because he defaulted in the payment of his periodic
dues, and that therefore his discharge did not violate the Act.9 We
find, contrary to the General Counsel's contention, that the Union was
8 The Union concedes that, had Whitehead's discharge been alleged in Miranda's first
amended charges, these charges would be sufficient to support the complaints herein.
9 The Firestone Tire and Rubber Company, 93 NLRB 981.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivated in seeking Stovac's discharge by his delinquency in the pay-
ment of his dues and not by any hostility to him.
5. The Trial Examiner found that the Union did not violate Section
8 (b) (1) (A) of the Act by increasing the initiation fee required as a
condition of obtaining membership before August 31, 1948, the effec-
tive date of the union-shop clause in the Respondents' agreement. He
found that the proviso to that section protected this action.10 How-
ever, the Trial Examiner also found that the Union's threats to in,
crease the initiation fees for employees who failed to join by a fixed
date during this time constituted restraint and coercion within the
meaning of Section 8 (b) (1) (A).
We agree that the Union was privileged to raise initiation fees
before the effective date of the union-shop clause. The only limita-
tion placed on the Union's right to do so is contained in Section 8 (b)
(5), which prohibits "excessive or discriminatory" fees as a condition
of becoming a member only where a valid union-shop contract'covering
the employees is in effect. For this reason we find, contrary to the
Trial Examiner's other finding, that as the Union did not violate the
Act by increasing the initiation fee, it was privileged to warn the
employees of its intention to do so."
Accordingly, we shall dismiss all the 8 (b) (1) (A) allegations of
the complaint against the Union other than those relating to the dis-
charge of Miranda and Whitehead.
The Remedy
Having found that the Respondents engaged in certain unfair labor
practices, we shall order them, in substantial accordance with the Trial
Examiner's recommendations, to cease and desist therefrom and to
take affirmative action necessary to effectuate the policies of the Act.
Like the Trial Examiner, we shall order the Respondent Company
and the Respondent Union jointly and severally to make Miranda
whole for any loss of pay she may have suffered as a result of the dis-
crimination against her, in the manner set forth in the Intermediate
Report, except that the Union's liability for back pay shall terminate
5 days after notifying the Company that it withdraws its objection to
her employment, as provided in the Intermediate Report 12
With respect to Whitehead, the Union's liability for back pay shall
also terminate 5 days after giving the Company notice of withdrawal
"The proviso to Section 8 ( b) (1) (A) states : "Provided that this paragraph shall
not impair the right of a labor oiganization to prescribe its own rules with respect to the
acquisition or retention of membership therein "
"Cf International Brotherhood of Teamsters , Etc. (Conway 's Express ), 87 NLRB
972, 983, where the Board held that , as a union was privileged under the proviso to Section
8 (b) (1) (A ) to expel members because of their strike -breaking activities , it was also
privileged to threaten to do so
11 Pinkerton's National Detective Agency, Inc, 90 NLRB 205.
FERRO STAMPING AND MANUFACTURING CO. 1465
of its objection to his employment. In addition, the Union shall de-
duct from the amount due to Whitehead such sums as would normally
have been deducted from his wages for deposit with State and Federal
agencies on account of social security and other similar benefits. The
Union shall pay to the appropriate State and Federal agencies, to the
credit of Whitehead and the Company, a sum of money equal to the
amount which, absent the discrimination, would have been deposited
to such credit by the.Company, either as a tax upon the Company or an
account of deductions made from Whitehead's wages by the Company,
on account of such social security or other similar benefits 13
In accord with the Trial Examiner's recommendation, we shall fur-
ther order the Union to reimburse the employees named in Appendix
A for the discriminatory overcharge of the initiation fee by payment
to each of them of the sum of $10.00.
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 :
A. The Respondent, Ferro Stamping and Manufacturing Co., Mt.
Pleasant, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in the Respondent, International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 753, C. I. 0., or in any other labor organi-
zation of its employees, by discriminating against its employees in any
manner in regard to their hire or tenure of employment or any term
or condition of their employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Mary Miranda immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(b) Upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order.
"Pen and Pencil Workers Union, Local 19504. AFL (Wtilhelmina Becker), 91 NLRB
868.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant at Mt. Pleasant , Michigan , copies of the notice
attached hereto as Appendix B 14 Copies of such notice , to be fur-
nished by the Regional Director for the Seventh Region, shall, after
being duly signed by the Respondent Company's representative, be
posted by the Company , immediately upon receipt thereof and main-
tained by it for sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to insure
that said notices are not altered , defaced, or covered by any other
material.
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10 ) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
B. The Respondent, International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America , Local 753,
C. I. 0., its officers , representatives , agents, successors , and assigns,
shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent , Ferro Stamp-
ing and Manufacturing Co., it officers agents, successors , and assigns,
to discharge employees who have tendered the initiation fees and
periodic dues uniformly required as a condition of acquiring or re-
taining membership or to whom membership is not available on the
same terms or conditions generally applicable to other members, or
causing or attempting to cause the said Company in any other manner
to discriminate against its employees, in violation of Section 8 (a) (3)
of the Act.
(b) Requiring the employees of the Respondent , Ferro Stamping
and Manufacturing Co., its successors or assigns , who are covered by
an agreement authorized by Section 8 (a) (3) of the Act, to pay dis-
criminatory fees as a condition precedent to becoming members of the
Union.
(c) Restraining and coercing employees of the Respondent, Ferro
Stamping and Manufacturing Co., its successors , or assigns, in the
exercise of their rights guaranteed in Section 7 of the Act , except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify the Respondent ,' Ferro Stamping and Manufacturing
Co., in writing , that it withdraws all objections to the employment of
"In the event this Order is enforced by decree of a United States Court of Appeals,_
there shall be inserted before the words "A Decision and Order " the words "A Decree of
the United States Court of Appeals Enforcing 11
T FERRO. STAMPING AND MANUFACTURING CO. 1467
Mary Miranda, and Dale Whitehead and that it requests said Company
to offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights and privileges.
(b) Make whole Dale Whitehead for any loss of pay he may have
suffered, in the manner prescribed in the remedy section of the Inter-
mediate Report as modified in the Board's decision.
(c) Reimburse the employees named in Appendix A for the dis-
criminatory overcharge of initiation fees previously paid by them, by
refunding to each of them the sum of $10.
(d) Post at its business offices and meeting halls in Mt. Pleasant,
Michigan, copies of the notice attached hereto as Appendix C.15
Copies of said notice, to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by an official repre-
sentative of the Respondent Union, be posted by it immediately upon
receipt thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Union to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail to the Regional Director for the Seventh Region signed
copies of the notice attached hereto as Appendix C, for posting, the
Respondent Company willing, at the Company's plant in Mt. Pleasant,
Michigan, in-places where notices to employees are customarily posted.
(f) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent Union has taken to comply herewith.
C. The Respondents, Ferro Stamping and Manufacturing Co.,
and International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local 753, C. I. 0., their officers,
representatives, agents, successors, and assigns, shall jointly and sever-
ally make whole Mary Miranda for any loss of pay she may have suf-
fered by reason of the discrimination against her, in the manner pre-
scribed in "The remedy" section of the Intermediate Report as modi-
fied in the Board's decision.
IT IS FURTHER ORDERED that the complaint against the Respondent,
Ferro Stamping and Manufacturing Co., be, and it hereby is, dismissed
insofar as it alleges that the said Respondent violated the Act by exe-
cuting an illegal union-security contract and by discriminatorily dis-
charging Thomas Stovac and Dale Whitehead.
IT Is FURTHER ORDERED that the complaint against the Respondent,
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 753, C. I. 0., be, and it hereby
is, dismissed insofar as it alleges that the said Respondent violated the
15 See footnote 14.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `
Act by executing an illegal union-security agreement, by causing and
attempting to cause the Respondent Company to discharge Thomas
Stovac, and by restraining and coercing employees in the exercise of
their statutory rights except as otherwise found herein.
Appendix A
Employees entitled to reimbursement for the discriminatory over-
charge of initiation fees.
Dean Beverlin
Vera Campbell
Harry Fischer
Lorraine Fischer
Blanche Houghton
Jeanne Huber
Wilma Johnson McGee
Peggy Fitzpatrick
Genevieve Neubecker
Stanley Phelps
Alfred Reed
Daniel Stacy
Thomas Stovac
Ezoa Morey Strong
Dorothy Tennant Ingraltain
Veda Wallace
Charlotte Wood
Katie Kriesche
Henry (Gale) Stalter
Veronica Recker
Mildred Recker
Inez Harvey
Michael Harvey
Blanche Woodin
Elizabeth Garland
Hester Ash
Appendix B
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 753, C. I. 0., or in any other labor
organization of our employees, by discriminating against our
employees in any maimer in regard to their hire or tenure of
employment, except to the extent permitted by Section 8 (a) (3)
of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL offer Mary Miranda immediate and full reinstatement
to her former or a substantially equivalent position, without prej-
udice to any seniority or other rights and privileges previously
FERRO STAMPING AND MANUFACTURING CO. 1469
enjoyed, and make her whole for any loss of pay suffered as a
result of the discrimination against her.
FERRO STAMPING AND MANUFACTURING CO.,
Employer.
By -----------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain'posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.:
Appendix C
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, LOCAL 753, C. 1. O. AND TO ALL EMPLOYEES OF FERRO
STAMPING AND MANUFACTURING CO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause FERRO STAMPING AND
MANUFACTURING Co., Mt. Pleasant, Michigan, its officers, agents,
successors, or assigns, to discharge because-of nonmembership
in our organization employees who have tendered or paid the
initiation fees and periodic dues uniformly required as a con-
dition of acquiring or retaining membership, or to whom mem-
bership is not available on the same terms and conditions gen-
erally applicable to other members, or cause or attempt to cause
the said Company to discriminate against its employees in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT require the employees of said Company, its suc-
cessors or assigns, who are covered by an agreement authorized
by Section 8 "(a) (3) of the Act, to pay discriminatory fees as
a condition precedent to becoming a member of our union.
WE WILL NOT restrain or coerce employees of said Company,
its successors or assigns, in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act.
WE vIJ,L make Mary Miranda and Dale Whitehead whole for
any loss of pay they may have suffered because of the discrimina-
tion against them.
1470 DECISIONS OF NATIONAL LABOR RELATIONS :BOARD
WE WILL refund to each of the following employees the sum
of $10 representing the discriminatory overcharge of initiation
fees previously paid by them :
Dean Beverlin
Vera Campbell
Harry Fischer
Lorraine Fischer
Blanche Houghton
Jeanne Huber
Wilma Johnson McGee
Peggy Fitzpatrick
Genevieve Neubecker
Stanley Phelps
Alfred Reed
Daniel Stacy
Thomas Stovac
Ezoa Morey Strong
Dorothy Tennant Ingraham
Veda Wallace
Charlotte Wood
Katie Kriesche
Henry (Gale) Stalter
Veronica Recker
Mildred Recker
Inez Harvey
Michael Harvey
Blanche Woodin
Elizabeth Garland
Hester Ash
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURE IMPLEMENT
WORKERS OF AMERICA, LocAL 753, C. I. 0.
Labor Organization.
B3'----------------------------------------'--=------------
(Representative ) (Title)
Dated ----------------------
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report
Mr. Herman Corenman, for the General Counsel.
Mr. John C. Donnelly, of Detroit, Mich., for the Respondent Company.
Mr. Winston L. Livingston, of Detroit, Mich., for the Respondent Union.
STATEMENT OF THE CASE
Upon charges and amended charges filed by Mary Miranda in Cases Nos.
7-CA-182 and 7-CB-32, and by Blanche Woodin in Case No. 7-CB-23, the
General Counsel of the National Labor Relations Board, by the Regional Director
of the Seventh Region (Detroit, Michigan), issued his complaint dated February
28, 1950, in Cases Nos. 7-CB-32 and 7-CB-23 against International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
Local 753, C. I. 0., herein called the Union, and his complaint bearing the same
date in Case No 7-CA-182, against Ferro Stamping and Manufacturing Com-
pany, herein called the Company, alleging that the Respondents named in the
respective complaints had engaged in and were engaging in unfair labor practices
affecting commerce, the Union within the meaning of Section- 8 (b) (1), (2),
FERRO STAMPING AND MANUFACTURING CO. 1471
and (5) and 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
and the Company within the meaning of Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the Act. By order of the General Counsel, dated February 28,
1950, the aforesaid cases and complaints were consolidated for hearing. Copies
of the complaints, order of consolidation, and notice of hearing were duly served
upon the Respondents and the charging parties.
With respect to the unfair labor practices, the complaint, in Case No. 7-CB-32
and Case No. 7-CB-23, allegel in substance that the Respondent Union:
1. Violated Section 8 (b) (2) of the Act by:
(a) Causing the Company, on or about July 8, 1948, to enter into an agreement
containing an illegal union-shop clause; and
(b) Causing the Company to discharge Mary Miranda on or about November
22, 1948, Thomas Stovac on or about January 3, 1949, and Dale Whitehead on or
.about January 11, 1949.
2. Violated Section 8 (b) (5) of the Act by requiring certain employees
covered by the union-shop clause to pay discriminatory and excessive initiation
fees and dues as a condition of membership, it being more specifically alleged
that the Union :
(a) From July 29 to August 6, 1948, required certain employees, as W condition
of membership, to pay union dues for the months of May, June, and July 1948,
in addition to the regular $2 initiation fee and current month dues of $1.50
uniformly required of applicants for membership ;
(b) From on or about August 6, 1948, to on or about August 20, 1948, required
certain employees to pay a' discriminatory and excessive initiation fee in the
amount of $6 50 as a condition precedent to membership in the Union ; and
(c) From on or about August 20, 1948, to on or about November 22, 1948,
required certain employees who had theretofore refused to join the Union to
pay an excessive and discriminatory initiation fee of $15 as a condition precedent
to membership in the Union.
3. Violated Section 8 (b)' (1) (A) of the Act by:
(a) Engaging in all the conduct referred to above;
(b) Threatening to cause the discharge of employees for nonmembership in
the Union ;
(c) Threatening to increase to $15 the initiation fee of employees who declined
membership on the Union's terms prior to August 15, 1948; and
(d) Threatening to cause the discharge of employees if they did not sign
checkoff authorizations.
The complaint as amended at the hearing in Case No. 7-CA-182 alleged in
substance that the Respondent Company :
1. Violated Section 8 (a) (3) of the Act by entering into and placing into
effect a contract containing an illegal union-shop clause; and
2. Violated Section 8 (a) (3) and 8 (a) (1) of the Act by discharging, at the
Union's demand, and thereafter refusing to reinstate, Mary Miranda, Thomas
Stovac, and Dale Whitehead.
The Respondent Union in answer to the 'complaint against it denied all
material allegations thereof imputing to it the commission of unfair labor
practices. The Respondent's answer also alleged a number of affirmative de-
fenses which in their substance will be covered below either in conjunction with
the recital of motions made at the hearing or in the findings made in the sections
below, entitled "The unfair labor practices," and "The remedy."
The Respondent Company, in its answer, as amended at the hearing, admitted
that it discharged Thomas Stovac and Dale Whitehead at the demand of the
1472 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Union,' but denied that such discharges were discriminatory, and otherwise denied
all material allegations of the complaint imputing to it the commissions of
unfair labor practices. The Company's answer also contains certain affirmative
allegations which will be considered below in the same manner as will the
affirmative allegations contained in the Union's answer.
Prior to the hearing each . of the Respondents made a number of motions
addressed to the complaint against it. The prehearing motions were denied in
all respects by the Trial Examiner to whom they were duly referred. Included
among these motions were the following: (a) Motions by both Respondents to
dismiss the complaints on portions thereof for insufficiency on their face; (b)
motions by both Respondents to strike from the complaints all allegations relating
to the discharges of Stovac and Whitehead upon the ground that the claims were
untimely charged and are barred by the limitations provisions of Section 10 (b)
of the Act; 2 (c) motions by both Respondents to strike from the complaints all
allegations relating to initiation fees requii ed or collected by the Union prior
to August 31, 1948, the date when the union-shop clause in the contract first
became effective ; '(d) motion by the Respondent Union to dismiss or strike from
' The Company in its answer as originally filed also made a like admission with regard
to Mary Miranda, but during the course of the hearing was permitted on motion to amend
its pleading to allege that Miranda voluntarily quit her employment.
2 The 10 (h) motions were renewed by the Respondents at various stages of the hearing
and although consistently denied, n me earnestly and at length urged anew in the Respond-
ents' briefs The Respondents' position is predicated upon these facts Stovac was dis-
charged on January 3, 1949, and Whitehead on January 11, 1949, after the Union had noti-
fied the Company that they acre delinquent in dues payment's and had asked for enforcement
of the union-shop clause in the contract Neither Stovac nor Whitehead ever filed
charges against the Company or the Union The of iginal charges of Blanche Woodm,
dated September 7, 1948, and Mary Miranda, dated December 1, 1948, were filed before
Stovac and Whitehead were discharged The original Woodin charge, which was against
the Union alone, charged violations of Section 8 (b) (1), (2), and (5) of the Act,
specifying that the Union discriminated among employees with regard to admissions to
membership, that it attempted to force employees into the Union before a union-shop
clause in the contract became legally effective, and that it was coercing employees to
sign checkoff authorizations The original Miranda charges, against both the Union and
the Company, charged, without stating the specific sections of the Act claimed to have
been violated, that the Union had discriminated against employees in general and against
ber in paiticular with regard to initiation fees and conditions upon which membership
was made available to employees, and that the Company with knowledge of such facts
had unjustly discharged her at the request of the Union aftei she had refused to submit
to the discriminatory conditions for membership. On May 5, 1949, approximately 4
months after the discharges of Stovac and Whitehead, the Woodin and Miranda charges
were first amended, but the amended charges made no reference to the cases of Stovac
and Whitehead The Stovac and Whitehead discharges are first referred to in the second
amended charges filed by Miranda against the Union and the Company on August 26, 1949,
more than 6 months after Stovac and Whitehead were discharged
Basically, it is the Respondent's position that the allegations of the complaint relating
to Stovac and Whitehead may not properly be predicated upon the second amended charges
of Miranda filed after the 6 months' limitations Nor, they argue, may the earlier
charges be relied upon, because the original charge was filed before the discharges
occurred, and because the first amended charge, although filed within the limitations
period, makes no reference to Stoac and Whitehead It is unnecessary to dwell here
on the arguments the Respondents advance to support their position It is sufficient to
say that they are answered adversely to the Respondents' position in Catheij Lumber Coin-
pany, 86 NLRB 167, on which I relied at the hearing and now rely in overruling the
Respondents' contentions I am unable to agree with the Respondents that the guiding
principles enunciated by the Board in Cathey Lun,bei must be confined to situations where
there is a close relationship between unfair labor practices timely charged and those
subsequently added by amendment or in the complaint. Consequently, even if it were
granted that the allegations in the complaint concerning Stovac and Whitehead are un-
related to the other allegations of the complaint-a point on which I find it unnecessary
to pass-the result reached would be the same
FERRO STAMPING AND MANUFACTURING CO. 1473
the complaint against it all allegations thereof based in whole or part on the
charge or amended charges filed by Blanche Woodin.3 _
Pursuant to notice, a hearing was held between May 22 and June 8, 1950, at
Mt. Pleasant, Michigan, before the undersigned, Arthur Leff, the Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Union,
and the Company were represented by counsel and participated in the hearing.
Full opportunity to examine and cross-examine witnesses, and to introduce evi-
dence beaiing on the issues was afforded all parties. At the close of the General
Counsel's case, motions by the General Counsel to amend his complaints, and
by the Company to amend its answers, were granted.' Motions by both Re-
spondents, to dismiss the allegations of the complaints relating to Stovac and
and Whitehead on the ground that their claims were barred under the pro-
visions of Section 10 (b) of the Act, and to strike all evidence concerning events
occurring prior to August 31, 1948, Upon the grounds earlier mentioned, were
denied Motions by each of the Respondents to dismiss the complaint against
it, or portions thereof, upon the ground that the evidence adduced failed to
substantiate the unfair labor practices alleged, were denied with leave to renew
after all parties had rested At the close of the entire case, the Respondents
renewed their motions to dismiss for insufficiency of proof. Decision on these
motions was reserved, and they are now disposed of in the manner indicated
in the Findings of Fact and Conclusions of Law, below. At that time, the
Respondents also renewed their other motions earlier made, and these were
again denied. Motions by all parties, made at the close of the hearing, to
conform their respective pleadings to the proof with regard to minor variances,
weie granted. Opportunity to argue orally and to file briefs and proposed
findings of fact and conclusions of law were extended to all parties. Counsel
waived oral argument. Briefs have been received from all parties.
Upon the entire record in the case, and from my observation of the witnesses,
1 make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Ferro Stamping and Manufacturing Company, a Michigan corporation, is
engaged iii the manufacture of automobile hardware in its plant located at Mt.
Pleasant, Michigan. During the year 1949, which is a representative year of the
Company's operations, the Company received at its plant in Mt. Pleasant, Michi-
gan, from points outside the State of Michigan, raw materials valued in excess
of $500,000. During the same year, it shipped from its Mt. Pleasant plant to
points outside the State of Michigan, or to other manufacturers for shipment to
such points, finished products valued in excess of $2,000,000. The parties do not
'This motion was made on the ground that the Regional Director had refused to issue
it complaint upon the original charge and no request for review had been filed by woods
within the time prescribed by the Board's Rules Woodin's charge was reinstated by
the Regional Director following Miranda's successful appeal to the General Counsel from
the Regional Director's refusal to proceed on her charge The failure of a Regional
Director to proceed on a charge is not res judscata of the issues, and does not estop the
Regional Director from thereafter reinstating the charges sue sponte or upon advice of
the General Counsel. See, Cibbs Corporation, 74 NLRB 1182 . Republic Steel Corporation,
62 NLRB 1008 In any event, it may be noted, the Miranda charges supply, independently
of the Woodin charges, a sufficient predicate for the complaint against the Union
The complaints were amended. over -the objection of the Respondents, so as to allege
that when discharged Stovac and Whitehead were members in good standing of the
Union within the definition of the union-security clause in the contract. The Company's
answer was aniended in the manner indicated in footnote 1, above.
94 37 32-51-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute, and it is found , that the Company is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATION INVOLVED
International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 753 , affiliated with the Congress of Industrial Organ-
izations , is a labor organization admitting to membership employees of the
Company.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Company at its plant in Mt. Pleasant , Michigan , employs approximately
400 production and maintenance employees . For several years prior to 1948,
these employees were represented by a local of District No. 50, United Mine
Workers of America. The last collective bargaining agreement between the
Company and that local expired on April 27, 1948 . Before its expiration, the
International Union, UAW-CIO, filed a petition for certification of represent-
atives. A Board -conducted election was held on April 19, 1948 , with the UAW-
CIO the only labor organization on the ballot , a substantial majority of the
employees voted for representation by the UAW-CIO, and on April 122, 1948, the
Board certified that union as the exclusive bargaining agent of the Company's
production and maintenance employees at Mt. Pleasant . On April 26, 1948, the
International issued a charter to Local 753 , the Respondent Union in this proceed-
ing.
On April 28, 1948, the United Mine Workers local held a meeting at which
the membership voted to disaffiliate from the United Mine Workers, to affiliate
with the UAW-CIO, and to transfer its funds and assets to the Union. Immedi-
ately thereafter , the Union held its first membership meeting, at which motions
were passed to receive the funds of the United Mine Workers local and to continue
former officers of the Mine Workers local as officers of the Union. Notwith-
stafiding the action , taken at these meetings , it appears that the assets of the
United Mine Workers Union have never in fact been turned over to the Union.
It appears further that a small group of employees , some of whom had previously
been officials of the Mine Workers local , remained loyal to that labor organiza-
tion, and throughout 1948 continued to hold monthly meetings at the home of
Blanche Woodin , the charging party in Case No . 7-CB-23.
Shortly after its certification , the Union began negotiations with the Company
for a new collective bargaining agreement . The negotiations were consummated
by a contract signed on July 8, 1948 , granting to employees greater economic and
other benefits than they had previously enjoyed. The contract contained a
provision for a union -shop reading as follows :
Section 6. The Company agrees to grant the following Union Security
proviso contingent upon proper certification being received from the Na-
tional Labor Relations Board or a regional office thereof who certifies that
a majority of employees has authorized the Union to agree to an article as
provided by Section 8 (a) of the Labor -Management Relations Act, 1947.
Such proviso shall become effective as of the date of certifications.
All present employees on the payroll of the company covered by this agree-
ment shall within thirty ( 30) days as a condition of continued employment
become and remain members of the Union in good standing . All future
employees hired by the Company, shall upon completion of their twenty-two
(22) days worked probationary period, and upon attaining seniority shall
FERRO STAMPING AND MANUFACTURING CO. 1475
as a condition of continued employment, become and remain members of
the Union in good standing. Such present or future employees shall be
considered not in good standing only upon refusal to pay certified Union
membership dues.
Under the contract, the Company also agreed to honor written checkoff author-
izations.
While contract negotiations were still proceeding, the Union filed a 'petition
under Section 10 (e) (1) of the Act for authorization to enter into a union-shop
agreement. On July 21, 1948, a union-shop election was conducted by the Board.
By a vote of 269 to 101, the employees voted for such authorization. But though
the results of the election became generally known at once, formal Board certi-
fication was withheld for some 6 weeks, because of the Union's delay in effecting
technical compliance with the provisions'of Section 9 (f), (g), and (h) of the
Act. It was not until August 31, 1948, that the Board certified the results of
the union-shop election, thus making effective the union-shop provision.
B. The validity of the union-shop clause
Before proceeding to chronicle the other events which give rise to this case, it
may be well to pause at this point to dispose of a preliminary issue-the ques-
tion of the validity of the union-shop clause. That clause is under frontal attack
in this proceeding, it being alleged that by including it in their contract the
Union violated Section 8 (b) (2) and 8 (b) (1) of the Act, and the Company,
Section 8 (a) (3) and 8 (a) (1). But that is not the only importance of the
issue. If, as claimed by the General Counsel, the clause is illegal and void per se,
the discharges of Miranda, Stovac, and Whitehead, to be discussed below, which
the Respondents seek to justify under that clause would clearly be illegal, with-
out more. Moreover, a serious question would be raised as to whether the alleged
violation by the Union of Section 8 (b) (5) need be considered at all, for that
section by its terms is applicable only where employees are "covered by an agree-
ment authorized under subsection (a) (3)."
It is the contention of the General Counsel that because, in the case of newly
hired employees, the clause requires union membership "upon the completion
of 22 days worked probationary period," it provides for a greater degree of
union security than is permissible under the proviso to Section 8 (a) (3) of
the Act,` and hence is illegal and unenforceable. With that contention the
Respondents take issue. It is their position that the "22 days worked probation-
ary period" was never intended to require union membership within less than
the 30 calendar days mentioned in the proviso, that it has never been and as a
practical matter cannot be so applied, and that it must fairly be construed as
extending, if anything, rather than limiting the minimum time period which
Congress has set.
The record supports the Respondents' position. It is clear from the evidence
that in drafting the clause the contracting parties did so with the proviso clearly
in mind and that it was their intent to observe, not violate, the 30 calendar day
requirement of the Act. Originally, the Union had prepared a 30 calendar day
clause in conventional form. The Company had countered with a request for a
60-day clause, because new or probationary employees do not as a rule work
steadily, because it felt that a 30 calendar day limit might supply an insufficient
period to test the competence of a new employee, and because it did not believe
6 Provided, That nothing in this Act . . . shall preclude an employer from making an
agreement with a labor organization . . . to require as a condition of employment mem-
bership therein on or after the thirtieth day following the beginning of such employment "
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an employee should be required to join the Union until his right to the job
had been established. The "22 days worked" formula was seized upon as a
compromise which would meet the Company's arguments, satisfy the Union's de-
sire to have employees join'the Union when their probationary period was
completed, and at the same time comply with the Act's 30 calendar day require-'
ment. Where work is available for them, new employees at the Company's
plant work at most only 5 days a week, with the result that "22 days worked,"
assuming they work regularly, would be the equivalent of 30 calendar days, and,
if they do not work steadily, a greater calendar period. Records of the Company
covering the period from June 1948 to February 1949, the only records on that
point in evidence, show that no new employee attained seniority in less than 30
calendar days, and that, in almost all instances a longer period was required.'-
It is, to be sure, mathematically possible for an employee to have performed "22
days worked" in less than 30 calendar days by working on one or more Saturdays
But the undisputed evidence shows that in practice new employees are rarely,
if ever, called upon to work on a Saturday, and, when they are, their time is
thereafter equalized by layoff on a regular workday within the 30 calendar day
period And even if it should occur, although it has not yet, that an employee
attains "22 days worked" within the 30 calendar day period, other provisions of
the contract would require that enforcement of the union-security clause be
suspended until the statutory period had run °
No particular words of ait are necessary to fulfill the requirements of a valid
union-shop clause under Section S (a) (3) of the Act The Act does not compel
adherence in language formal and precise to the phrasing of the proviso, i e.,
"on or after the thirtieth day following the beginning of such employment "
So long as the agreement does not require employees to join a union in less
than 30 clays, the parties are free to express themselves by any formula of com-
puting time which is translatable to calendar days, though this may require
reference to extrinsic facts. All that is necessary is that it be clear from the
language of the contract, when read in the factual context to which it relates
and applies, that the union-security sanctions are not to be invoked at a time
or in a manner that the law forbids On the facts of this case, I am fully satis-
fied that it was the intent of the contracting parties fully to observe, and not
to evade, the letter and spirit of Section 8 (a) (3). I am equally satisfied that
the clause in issue, pragmatically related to the external facts and circumstances
governing its application, meets the criteria of a valid union-shop agreement as
defined by the proviso of Section S (a) (3). Consequently, I shall recommend
the dismissal of such allegations of the complaints as attack the validity of that
clause.
C. The issue of excessive or discriminatory initiation fees; factual findings
This issue basically involves the alleged violation by the Union of Section 8
(b) (5), although, as will more fully appear below, it also has a direct and
important hearing on the alleged violations of Section 8 (b) (2) and 8 (b) (1) by
the Union and Section 8 (a) (3) and 8 (a) (1) by the Company in connection
with the termination of employment'of Mary Miranda. On the basis of one of
the theories of the General Counsel, which, however, is rejected below, it also
has a bearing on the alleged violations of the same sections growing out of the
discharge of Stovac and Whitehead. Because Section 8 (b) (5) by its terms
° Seniority is first attained upon completion of the probationary period
4 Other clauses of general application provide in substance that if the contract in any
way should require an illegal performance under the Act. such performance shall be ex-
cused to the extent required by the terms of the Act.
FERRO STAMPING AND MANUFACTURING CO. 1477
is applicable only to employees covered by a valid union-security contract, the
facts to be related are here divided into those which occurred before August 31,
1948, the effective date of the union-shop clause, -and, those which occurred
later.
1. Terms and conditions upon which employees were admitted to union member-
ship prior to August 31, 1948
Admissions to membership in the Union are governed by the Union 's inter-
national constitution . It is there provided that initiation fees shall be not less
than,$2 nor more than $15. Monthly dues are fixed at $1.50.
Before the union-shop election, employees who had been members in good
standing of the United Mine Workers local were permitted , by virtue of special
authorization from the Union ' s international secretary -treasurer , to transfer
their membership to the Union without payment of initiation fees . All other
applicants were required, however, to pay an initiation fee of $2. Prior to
July 29 , 1948. 309 employees of the approximately 400 eligibles had joined Of
these, 281 paid no initiation fee. just dues , and 28 paid an initiation fee of
$2 plus dues
At meetings of the union membership , held on July 29, 1948, a week after the
union -shop election , consideration was given to the problem both of bringing
into the Union the approximately 100 employees who had not yet joined, and
of the terms on which such employees were to be admitted The membership
voted to accept the recommendation of the Union 's executive committee that
"older employees " be given a deadline until August 15, 1948, to come into the
Union upon payment of a $2 initiation fee plus 4 months ' dues. After the dead-
line the initiation fee was to be $15 , according to the motion as it was passed.
In accordance with the action taken , the Union, on July 29. 1948 , posted notices
on the various union bulletin boards in the Company 's plant reading as follows :
ALL ELIGIBLE EMPLOYEES MAY JOIN U. A. W -C. I. 0. LOCAL 753
BY PAYING INITIATION FEES OF $2.00 PLUS MAY , JUNE, JULY AND
AUGUST DUES , UNTIL AUGUST 15, 1948.
During the succeeding week, some six employees joined the Union, paying vari-
ous amounts for their entrance fees. The variances are explainable only on
the hypothesis that while older employees were charged 3 months' back clues in
addition to their current dues and initiation fees, the newer employees were
charged dues only from the time they had entered the Company 's employ or had
completed their probationary period.
The decision of the Union to charge older employees back dues as a condition
to their admission met with what appears to have been organized resistance.
Although the record is not completely developed on that point , it would seem
that the resistance movement found its leadership in the small group of dissident
employees , such as Blanche Woodin, who had continued to maintain the remnants
of the former United Mine Workers organization , and were not adverse to em-
bnrrassing the Union where they could. On August 4 and 5, 1948 , a substantial
number of employees , individually and in groups , approached union stewards in
the plant and offered to join the Union by tendering amounts of money equal
to a $2 initiation and the current month's dues of $1.50. These tenders were in
all instances rejected by the stewards upon the ground that the entrance fee
at that time was $8, the equivalent of $2 initiation fees and 4 months' back dues.
For the purpose of making a record of what they had done, the employees whose
tenders had been rejected then affixed their signatures to statements which
had been apparently prepared in advance and which certified that the subscribers
,r
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had offered the Union $2 initiation fees and $1.50 current month 's dues, but had
been refused membership . The statements , containing some 48 signatures, were
delivered by Blanche Woodin to William Beckett , the Company 's labor relations
director , who put them away for safekeeping.
Because of the confusion and disputes which had arisen and possibly also
because of uncertainty as to the legality of the Union 's action in seeking back
dues as a condition of membership , the president of the Union called a meeting
of the Union 's executive board on August 6. At that meeting , it was determined
to interpret the membership 's resolution of July 29 as establishing a flat initiation
fee of $6.50 plus $1.50 current month's dues , effective until August 15. The
amount remained the same, only the formulation was changed . A notice to that
effect was posted on the bulletin boards on August 6.
On August 13, with the permission of the Company , the Union 's stewards circu-
lated in the plant among the workers for the purpose of soliciting the union
membership of eligible employees who had not yet applied . The employees were
notified that this would be their last week to come in for $8, and that the follow-
ing week the initiation fee would be increased to $15.
Between August 6 and August 20 , some 56 additional employees joined the
Union. Not all of them were required to pay $6.50 initiation fees, however. The
record shows that 2 relatively new employees , who had recently completed their
probationary period, were permitted to come in upon payment of $2 initiation fee
and $1.50 current month's dues.
On August 20, 1948, the Union posted a notice on its bulletin boards, calling
attention to the requirement of a $15 initiation fee from then on. Between August
20 and August 31, 1948, when the union -shop clause became effective , only one
employee , Laura Kunsman , an "older employee" who was hired in January 1947,
paid the $15 initiation fee.
2. Events after August 31, 1948
Under the contract 's union -security provision , all employees who had previously
completed their probationary period but had not yet joined the Union were
required as a con d ition of employment to become members by September 30, 1948.
The record reveals that during the month of September the following joined
upon payment of a $15 initiation fee and current month's dues :
Name Date hired Date attainedseniority Date paid
Dean Beverhn ---_-------_ Dec 11,1946 Jan - 11, 1947 Sept 30.1948
Vera Campbell ------------------------------------------- Aug. 13, 1945 Sept 13,1945 Sept 30,1948
Harry Fischer ---------------------------------------------- Nov 14, 1945 Dec 14, 1945 Sept 30.1948
Lorraine Fischer -_---_-_-_ ---------------- Jan 14,1947 Feb. 14, 1947 Sept 30,1948
Blanche Houghton ----------------------------------------- June 12, 1944 July 12,1944 Sept 30,1948
Jeanne Huber ----------------------------------------------- Feb. 26,1946 Mar 26, 1946 Sept 10,1948
Wilma Johnson McGee ------------------------------------- Mar 19, 1946 Apr 14, 1946 Sent . 8, 1948
Genevieve Neubecker--------------------------------------- July 19, 1948 Aug 19, 1948 Sept 30,1948
Stanley Phelps -------------------------------------------- Mar. 19 1948 Apr 9, 1948 Sept 30.1948
Alfred Reed ------------------------------------------------ July 8,1942 Aug 10, 1942 Sept 30, 1M
Thomas Stovac ------------------------------------------- August 1640 --------------- Sept 30, IM
Veda Wallace ----------------------------------------------- Aug. 12, 1948 Sept. 24, 1948 Sept . 30, 1948
Charlotte Wood -------------------------------------------- Apr 9,1945 May 9, 1945 Sept . 30, 1948
A number of additional employees, all with long seniority , who had waited
until the final moment to join the Union, were unable to join because their
tenders of $15 initiation fees and current month's dues were rejected by union
officials . A group of employees in this category was headed by Blanche Woodin.
Making the tender with Woodin were Hester Ash , Elizabeth Garland, Dan
Stacy, Mildred Recker, Veronica Recker, Inez Harvey, and Michael Harvey.
FERRO STAMPING AND MANUFACTURING CO. 1479
The Woodin group offered payment to Union Steward John Eickhorn at the
parking lot immediately after the close of the workday Qn September 30, but
Eickhorn refused to accept their tender, stating that they had had a chance
to join before and were now too late.' Another employee, Dorothy Tennant
Ingraham, on the same day tendered $16.50 in turn to her departmental steward,
Fred Krause,, to Chief Steward John Little, and to another steward, Sam Cruz.
Krause refused to accept her money because, he said, he had no cards with
him ; Little refused, stating he was not accepting money during his lunch hour ;
and Cruz refused because Krause had refused' Still another employee, Thomas
Stovac, on the same day tendered $16.50 for initiation fees and current dues to
Chief Steward Little who rejected his tender. That same afternoon, however,
Stovac, at the suggestion of the Company's labor relations director, forwarded a
money order in that amount to the Union by mail. Several days later he received
an official receipt indicating he had been admitted to membership.
Between September 30 and November 11, 1948-a date the significance of which
will soon become apparent-the only employees with seniority dating back
before August 20 who continued to remain outside the Union's fold were those
in the Woodin group (except Stacy) whose tenders had been rejected on Sep-
tember 30, 1948, and, in addition, Mary Miranda, whose case is separately
considered below.
Apart from these older employees, about 22 more recently hired employees
completed their probationary periods between September 1 and November 11,
1948, and thus became subject to the sanctions of the contract's union-security
pi ovision. A list of these employees with their hiring and seniority dates follows :
Name Date of hire Date attainedseniority
Peggy Fitzpatrick ---------------------------------------------------------- Aug 10, 1948 Sept 14,1948
Veda Wallace ------ -------------------------------------------------------- Aug 12,1948 Sept 24,1948
Thelma Wills------------------------------------------------------------- Aug. 10, 1948 Sept 14, 1948
Ruth Wills----------------------------- ----------------------------------- Aug - 10, 1948 Sept 14, 1948
Katie Kriesche ----------------------------- ------------------------------- Aug 11, 1948 Sept 16, 1948
Henry (Gale ) Staltei ------------------------------------------------------- Sept 1,1948 Oct 4, 1948Patricia Andiews--------------------------------------------------------- Aug 11, 1948 Sept 15,1948
-Marie Lumbert------------------ ------------------- Aug 12, 1948 Nov 5, 1948Ruth Carr------------------- -------- ----------------------- --- ---------- Aug 12, 1948 Nov 5, 1948William (Elga) Degase - --------------------------------------------------- Aug 20, 1948 Sept 28, 1948
Clarence Zawacki ----------------------------------------------------------- Aug 30, 1948 Sept 30, 1948
James Elkins------ ---------- ---------------------------------------------- Aug 30, 1948 Sept 29,1948
William Grass------------------------- ----------------------- Sept 2,1948 Oct 5, 1948
Lewis Johnston ------------------------------------------------------------- Sept 2,1948 Oct 5, 1948
Toseph Hogan----------------------- ------------------------------------- Sept 3,1948 Oct 9, 1948
Harold Gallant ------------------- ------------------------- Sept 3,1948 Oct 9,1948John Smillie ------ ---------------------------------------------------------- Sept 21, 1948 Oct 20, 1948
Melvin Wench ------------------------------------------------------------ Sept. 22, 1948 Oct. 29, 1948George Ervin --------------------------------------------------------------- Sept 29,1948 Oct 28, 1948
William Kline-------------------------------------------------------------- Sept 29,1948 Nov. 5,1948William McGee ------------------------------------------------------------ Sept 29, 1948 Nov 1, 1948
Harvey Wardwell ----------------------------------------------- Sept 29,1948 Nov. 5,1948
Of the 22 listed above, only 4-Wallace, Fitzpatrick, Kriesche, and Stalter-
joined the Union upon payment of a $15 initiation fee' And of these 4-it is to be
noted-3 had been employed by the Company during August when the Union had
8 Stacy subsequently joined the Union on or about October 29, 1948, by signing a checkoff,
card and paying a $15 initiation fee. The others in this group did not join until Novem-
ber 16, 1948, when-as will more fully appear below-they were given an ultimatum to
pay up or face discharge
Late that evening, however, Cruz telephoned Ingraham, told her that he was at a
tavern, and advised her that he was now ready to accept her money if she would meet him
there. Ingraham declined. On October 19, 1948, Ingraham tendered $16 50 to Harvey,
Hammond, the Union's financial secretary Her money was accepted, and she was ad-,
mitted to membership. i
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put on its membership drive to induce employees tojoin at a lower cost or face an
increased initiation fee of $15 Six others-Degase, Elkins, Grass, Thelma Wills,
Ruth Wills, and Smillie-also joined the Union during that period, but, so far as
the documentary evidence discloses, they were admitted during that period with-
out payment of any initiation fees.1° Hammond, the Union's financial secretary,
testifying with regard to Degase, Elkins, and Grass, admitted that each of them
had made private arrangements with his steward, of which Hammond was aware
and approved, to withhold payment of his initiation fee pending a final determina-
tion by the Union of the precise amount to be charged new employees. None:of
the remaining employees in this group of 22 joined the Union prior to November
11, 1948. And, as the record shows, the Union forbore from invoking the union-
security sanctions of the contract or otherwise exerting any pressure upon them to
u1o so.
As appears from the testimony of William Grass, talk was prevalent about the
plant during that period that the Union was trying to get the initiation fee down
to $5 for new men because it was felt that the new employees should not be
"slapped with a $15 00 fee that the old members had brought on themselves by not
joining." The talk was not idle gossip but had substance
Shortly after the $15 initiation fee had become effective, and about the time the
union-security clause had gone into effect, the Company had protested the amount
of the initiation fee, and had requested that it be reduced" It appears that the
union officials felt from the beginning'that a $15 initiation fee imposed an undue
hardship upon new employees, against whom they had no reason to entertain
malice or ill will, and were themselves desirous of bringing about a reduction of
the initiation fee applicable to such employees. But their attitude was entirely
different towards the remnants, still outside the Union, of the recalcitrant older
group of employees who, when they could not legally be obliged to loin, had as
"free riders" accepted union benefits without incurring union obligations, and had
refused in August to join on the Union's terms even in the face of the warning
given them with regard to raising to $15 the Union's initiation fees. What
troubled the Union at this time, however, was how the $15 initiation fee could
be retained for the older employees while a lower fee was set for new employees.
The subject of lowering initiation fees for new employees was raised at the
first membership meeting held after the announced increase of fees in August.
The minutes of the Unio'n's monthly membership meeting on September 9, 1948,
embody this comment:
10
Thelma and Ruth Wills signed checkoff authorizations on September 10, 1948 ; Grass
on October 4, 1948 ; Elkins and Degase on October 5 , 1948 ; and Smillie on October 29,
1948
11 William Beckett , the Company 's labor relations director , testifying as an adverse
party on the first day of the hearing , stated that in early September the Company requested
an "outright change in the over -all initiation fee for all employees , no groups or particular
groups-everybody " But when he appeared as a witness for the Company in the latter
part of the hearing , he altered his testimony to conform to that of union witnesses, that
the request was directed only to initiation fees payable by new employees The reason
for the request , Beckett then testified, was to avoid difficulties which the Company was
having in recruiting new employees . To the extent that the testimony on this point
is in conflict , I credit Beckett 's-original version As Beckett admitted , at the time the
Company ' s request was initiated , only older employees had complained about the unfair-
ness of the $15 initiation fee. His cross-examination developed that the Company was
in fact experiencing no difficulty in recruiting new employees , and that , with one exception,
no new employee complained about the amount of initiation fee I am unable to believe
that the Company was concerned only with new employees who were not protesting, and
that it was wholly unconcerned with the older employees who were complaining and'on
behalf of whom a charge had been lodged with the Board I do believe , however, that in
the course of time, as the Union 's adamant position with respect to the older employees
became apparent , Beckett may have "settled" by restricting his request to new employees.
FERRO STAMPING AND MANUFACTURING CO. 1481
Subject of initiation fee of $15.00 for new employees was discussed no
sound suggestions were offered.
Wayne Lyon, the Union's financial secretary, testified that the subject was
brought up either by him or by Financial Secretary Hammond, or possibly even
by President Yorwarth, he couldn't recall exactly. As to why it was raised-
Well, if I remember correctly, some of us didn't hardly believe that new
employees coming in there . . . they had no chance to join the Union pre-
viously and they would yet have had no benefits of the union, and some
of us did believe they shouldn't have the higher fee on them due to the fact,
as I have stated, they didn't have the chance to join the union and some
of them didn't receive any benefits of it.
Questioned concerning the "sound suggestions" that were being sought, Lyon
testified :
They [members of the committee] were trying to accomplish the lowering
of that initiation fee to new employees and we just wondered how we were
going to do it.
The subject was again raised at the October meeting held on the 14th day of
that month. The minutes of that meeting have this to say :
Motion by Hammond to reduce initiation fee to probationary employees
to be reduced, also that the fee to older employees remain the same 15.00.
Supported by Wayne Lyon. Motion made by Wayne Lyon, supported by
Harvey Hammond that this motion be tabled for further discussion. Unani-
mous vote by body to table motion.
With regard to this motion, Lyon testified that he had no recollection of any-
thing being said at the time to indicate it was being proposed at the Company's
request. The supporting reason advanced for the motion, Lyon testified, was
that new employees, unlike the older ones, had not had a chance to join the
Union previously, and, unlike them, had not enjoyed the benefits of the union
contract Hammond testified that the reason for tabling the motion was "be-
cause we couldn't really figui e out any way to word it, so it wouldn't be wrong."
The difficulty, he explained, was that "we wasn't sure . . . we could charge two
initiation fees."
The question of what initiation fees should be charged was finally resolved
at a union executive board meeting held on November 6, 1948. The minutes of
that meeting recite :
Meeting opened with discussion on initiation fee, which at present is
$15.00 (plus one months dues of $1.50, making a total of $1650). Most of
the Board felt that this initiation fee when applied to new members was
exorbitant. This discussion concluded with the following motion.
Motion by John Little, supported by John Iserboth, that all new employees
who have completed their 22 days worked probationary period and have
attained seniority shall pay initiation fee of 5.00 (plus one months dues of
1.50). All with more than 30 days seniority shall pay initiation fee of
15 00 (plus one months dues of 1.50). Motion carried by unanimous vote.
On November 11, 1948, the executive board's motion was ratified by the mem-
bership, and thereupon became effective.
Read literally, the executive board resolution might be construed as carrying
a prospective application-that is to say, as making the reduced initiation fee
of $5 applicable only to new employees whose obligation to join the Union at
the expiration of their 22 days worked period had not yet finally matured,
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while continuing to require all employees who had already attained seniority to
pay initiation fees at the preexisting rate in fulfillment of their already accrued
obligation. That would seem to be so because at the Company's plant employees
automatically acquire 30 days' seniority immediately upon completion of their
probationary period, and no other dividing line between "new employees" and
others is indicated in the resolution itself. Were that the construction placed
upon the resolution, then all employees who had attained seniority before Novem-
ber 11, 1948, should have been required to pay a $15 initiation fee, and only
those who attained seniority thereafter should have been entitled to the benefit
of the reduced fee.
But that is not how the resolution was actually construed and applied. In
determining who should pay $5 and who should pay $15, the Union did not draw
the border at the seniority line. Instead, the Union permitted all employees,
regardless of their seniority dates-except for the small group of older employees
not yet in the Union who had acquired seniority before the initiation fee was
fixed at $15 in-August-to join upon payment; of a $5 fee, plus, in most cases,
back dues from the dates they had completed their probationary periods. In-
cluded in the $5 classification group were employees-such as Andrews and
Zawacki-who had attained seniority in September; employees-such as Gallant,
Ervin, and Wonch-who had attained seniority in October ; and employees-such
as McGee, Carr, Lumbert, and Wardwell-who had attained seniority in early
November before the resolution was adopted. Employees-such as Grass, Elkins,
and Degase-who had previously joined the Union with the understanding that
their initiation fees might be withheld pending final determination of the amount
to be charged newer employees, were now permitted to clear arrears for initiation
fees by payment of $5. In administering the resolution, only the afore-mentioned
group of "older employees" were considered as falling within the $15 initiation
fee classification.
Whether or not the applied construction conformed with the language of the
resolution, it is clear that it carried out the Union's actual intent. As has been
seen, the Union in its earlier deliberations of the contemplated reduction had been
seeking a method of drawing a proper border between those who in the past had
chosen to occupy the position of "free riders" and others. George Yorwarth, the
Union's president, admitted upon cross-examination that when the executive
board adopted the resolution, it knew precisely the "older employees" who would
be required to pay $15 His testimony also makes clear that the executive board
was fully aware at that time that those falling within the $15 classification were
the remnants of the recalcitrant group of employees who previously had engaged
in a controversy with the Union with respect to the initiation fees demanded of
then 12 Although the Union sought duxing the hearing-as it also attempts in
its brief-to justify and explain the application of the resolution on the basis of
a uniform and nondiscriminatory rule of general application, unrelated to any
given individuals, its position in that regard is found wholly unconvincing."
11 The attitude of the Union toward members of this group is in part revealed by the
charge made in open hearing by counsel for the Union, that the group had conspired against
the Union and that the tenders of $3 50 on August 4 and 5, 1948, were part of a conspiracy
designed to embarrass the Union's membership campaign
is The Union through its pleadings, statements of counsel, and testimony of union offi-
cials (who, as the record shows, constantly shifted position with development of addi-
tional facts at the hearing) proffered at least four different interpretations of the intended
application of the resolution-each different, each inconsistent with the others in one
'respect or more , and all but the final one clearly at variance with the undisputed facts
showing the manner in which the resolution was actually administered The final inter-
pretation-and the one on which the Union now relies in its brief-was adduced through
the testimony of Harvey Hammond only after fallacies in the others had already been ex-
FERRO STAMPING AND MANUFACTURING CO . 1483
With the problem of initiation fees out of the way, the Union now moved to
invoke the >xnion-security sanctions of the contract against those who had not
joined. On November 16, 1948, the Union served on the Company a list of em-
ployees who had established their seniority but had not yet become members,
and requested the Company to "Please take action." The "Please Take Action"
"notice, as revised, contained 12 names, divided into 2 physically separated groups.
he reason for the separation, as appears from the testimony of Hammond, was
that those in the first group fell within the $15 initiation fee classification while
those in the second group fell within the $5 classification. Listed in the first
group were Blanche Woodin, Veronica Recker, Mildred Recker, Inez Harvey,
Elizabeth Garland, Hester Ash, Michael Harvey, Winifred Chalker, and Mary
Miranda. All these were old employees with substantial seniority. The first 6
named were the only ones in that group present in the plant that day. They
were summoned to the office of William Beckett, the Company's labor relations
director, and advised by him to join the Union, paying the $15 initiation fee
demanded, and, if they desired, to continue to contest the Union's right to demand
that sum by pressing the charges on file against the Union. They were warned
'that unless they joined by the end of that day they would be discharged. Faced
with that ultimatum, all 6 joined, signing checkoffs authorizing the Company
to withhold from their wages for the account of the union initiation fees amount-
ing to $15. Michael Harvey, upon his return from a leave of absence some time
later, was given a similar choice, and he, too, joined the Union upon payment
of a $15 initiation fee., Chalker, so far as the records disclose, never returned
to the plant and consequently was not confronted with the decision of joining
.the Union on its terms or losing her job Mary Miranda, as will more fully
appear below, returned to the plant on November 16, was given a similar ulti-
matum, refused to join, and was discharged. Listed in the second group on the
"Please Take Action" notice were Patricia Andrews, Marie Lumbert, and Ruth
Carr, who, although employed in August, attained their seniority thereafter,
Andrews in September, and Lumbert and Carr in early November. None in this
group was summoned to Beckett's office-actually Andrews was the only one
of the three present in the plant that day-but all subsequently paid $5 initiation
fees and back dues, and were admitted to the Union.
posed by record facts . In administering the resolution , according to Hammond , he con-
strued it as dividing "new" employees from others on the basis of whether they had
attained seniority after or before August 31 , 1948 , the certification date of the union shop.
Hammond explained his construction as follows
Anybody who attains seniority before August 31 paid $15 00 Anybody who at-
tained seniority after August 31-it would depend on when they paid-if they paid
before the notion was passed it was $15 00, and if they paid after, it would depend
on when their seniority was established. If it was after August 31 , it was $5 00 and
if it was before August 31 , it was $15.00.
'Hammond 's formula , I am persuaded , was not the one actually followed by him, but was
contrived at the hearing for the purpose of harmonizing into a seemingly rational ex-
planation the various inconsistencies that had become apparent when the earlier interpre-
tations had been put to the test of close scrutiny It leaves particularly unexplained the
reason for choosing August 31 as a cutoff date. Certainly there is nothing in the resolu-
tion itself to justify the selection of that particular date And the formula would have
been equally consistent with the known facts if instead of August 31 as a cutoff date, it
had been August 20, the date the initiation fee was raised to $ 15, or even some earlier
date .' For, as the record shows , all employees to whom the $ 15 fee was applied already
had several years' seniority at the time of the resolution ' s adoption . Hammond himself
was unable while testifying to explain why August 31 was chosen, except to state that
that was the union-shop certification date. What significance the certification date had in
determining a division between new and old employees he could not say. _Nor is this
otherwise apparent from i.he record.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F, Conclusions with regard to the Union's alleged violations of
Section 8 (b) (5) 34
It is best to begin by defining the issue. It is not as broad as may appear from
the pleadings, for it has been reduced by certain concessions made by the General
Counsel at the hearing and in his brief. Thus, the complaint as drafted alleges
a violation of Section 8 (b) (5) beginning from July 29, 1948, the date the Union
demanded of employees, as a condition of membership, payment of 3 months' back
dues in addition to the dues for the then current month. However, at the hear-
ing the General Counsel correctly conceded that the restrictions of Section 8 (b)
(5) are applicable only while employees are covered by a duly authorized union-
security agreement, and that in this case the earliest violation could date from
August 31, 1948, when the union-shop clause of the contract first became effective.
Thus, too, the complaint alleges that the Union's violation consisted of requiring
employees to pay excessive as well as dascrvininatory initiation fees. However,
in his brief, the General Counsel, again correctly, concedes :
The General Counsel is aware that the evidence in the record standing by
itself is not of sufficient breadth and scope to enable the Trial Examiner to
make a determination on the question of excessiveness of the $15.00 initiation
fee. For that reason we therefore agree that no determination be made on
the issue of excessiveness of the initiation fee.
These concessions are here viewed as a withdrawal pro tanto of the allegations
of the complaint to which they relate.
Thus, the issue to be determined is narrowed to this single question : Did the
Union. beginning on August 31, 1948, by requiring certain employees to pay a $15
initiation fee as a condition precedent to membership in the Union, impose upon
them a fee which was discriminatory under all the circumstances?
But while the Union's violation of Section 8 (b) (5) must begin, if at all, on
August 31, 1949. that does not mean that events before that date may not be con-
sidered The question of discrimination turns largely upon motive and intent.
what occurred before as well as that which followed may be as relevant to this
inquiry as that which occurred during the critical period. To the extent that
it may tend to light the path to determination, it cannot be ignored.
The events before August 31 do cast light About a week after the results
of the union-shop election became known, the Union, in anticipation of the forth-
coining certification, instituted a drive to bring within its ranks those employees
who had not yet joined In determining the terms of admission, the Union,drew
a distinction between "older employees" and those more recently hired. "Older
employees" were expected to pay the equivalent of the preexisting initiation fee
of $2 plus back dues dating back to about the time the Union was certified as
bargaining representative. Recently hired employees, however, were permitted
to join upon payment of the equivalent of the preexisting $2 initiation fee plus
back dues only from the time they had entered the Company's employ or had
completed their seniority. In short, the underlying policy that appears to have
guided the Union in assessing initiation fees at this time was the length of time
employees had had a "free ride" at the expense of their fellows who had con-
14 Section 8 (b) (5) makes it an unfair labor practice for a labor organization
to require of employees covered by an agreement authorized under subsection (a) (3)
the payment , as a condition precedent to becoming a member of such organization
of a fee in an amount which the Board finds excessive or drscriminatoiy under all the
circumstances
It further provides that,
In making such a finding, the Board shall consider , among other relevant factors,
the practices and customs of labor organizations in the pai ticular industry, and the
wages currently paid to the employees affected
FERRO STAMPING AND MANUFACTURING co. 1485
tributed to the support of the Union that had achieved benefits for all. To give
impetus to the membership drive, at a time when employees could not yet legally
be required to join, the Union announced in substance that those who persisted
in their role of "free riders" and failed to join by August 15-later extended to
August 20-would be confronted with the more burdensome initiation fee of $15
as a condition of membership (Significantly, the minutes of the July 29 meeting
reflect that the deadline to be followed by a $15 initiation fee was even at that
time contemplated as applying only to "older employees") On August 20. when,
with one exception, the only seniority employees who had not yet joined were
"older employees," the Union in fulfillment of its warning announced that the
initiation fee was now $15.
That was the genesis of the $15 initiation fee which in form was in effect for
all on August 31, 1948, when the employees became covered by the union-shop
clause, and the restrictions imposed by Section 8 (b) (5) began to apply. What
went before discloses that in originally fixing unequal initiation fees, the Union
was motivated in large degree by a desire to recoup past dues not legally pay-
able from nonmembers who had refrained from joining. It strongly suggests,
moreover, that the $15 initiation fee was designed as a reprisal measure against
at least certain nonmembers who persisted in holding out beyond the deadline
date, though during that period they could not yet legally be obliged to join.
Yet, if that were all, and if the record had established an intent at that time
on the part of the Union to continue into the indefinite future the $15 initiation
fee as one uniformly applicable to all employees in the unit, I should have hesi-
tated long before deciding that the $15 fee was maintained after August 31, 1948,
in violation of Section 8 (b) (5). But what went after leaves no doubt that
such was not the Union's intent.
As has been shown, the Union, almost immediately after the union-security
clause went into effect began to consider a reduction of the initiation fee for
new employees Tne delay until November 11, 1948, in effectuating the reduction
was attributable not to indecision as to whether the fee should be reduced, but
to uncertainty as to how a reduction could be accomplished for new employees
while retaining the $15 fee for older employees. Now, as in July and August,
the dominant policy consideration which appears to have guided the Union
in drawing a line between older and new employees was that the older employees
while accepting the benq^lits of the Union had refrained fioni supporting it at
a time they could not legally be compelled to join. To this, it is reasonable to
infer from the entire record, there were contributing considerations, such as
the Union's hostility toward the older employees led by Woodin because of
their actions in August seeking to embarrass the Union's membership drive-
hostility which is i etlected in part by the refusal of cei taro officials to accept
initiation fee tenders on 'September 30--and the Union's reluctance. if only for
reasons of pride, to retract in the case of the older employees the more burden-
some fee which it had warned them they would face if they failed to meet the
deadme for the lower rate. While final determination of the initiation fee was
being held in abeyance, the Union further disclosed it was not its real intent even
at that time to maintain a uniformly applicable initiation fee of $15. In anticipa-
tion of a reduction fer employees with recently acquired seniority, it permitted
a numhei of them to join without payment of, any initiation fee, holding such
payment in aheyanee pending determination of the reduced amount And it
,forbore from pressing others in that category to join Final proof that the
i"It is true that during that period some 4 employees in the same category did join
apparently voluntai fly, upon pa3 nient of a $15 initiation fee. but these were only 4 out of
22 who could have been reguiied to join on that condition , and though these exceptions
may not prove the rule, the3 are still not sufficient to retute it
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union never really intended to force the $15 initiation fee requirement except,
with regard to the older employees who had been threatened with it is to be
found in the manner in which it applied the resolution passed by its executive
board on November 6 and ratified by its membership on November 11. Instead
of giving this resolution prospective application and classifying employees on
the basis of whether their obligation to pay a $15 initiation fee had previously
accrued, the Union applied the reduced fee retroactively as to some seniority
employees but not as to others. Those who might have joined at a lower rate,
before the deadline, but refrained from doing so, were charged $15. Those who
because they had attained seniority thereafter were not in the group of "free
riders" against whom the $15 fee had beef originally leveled as a penalty meas-
ure were permitted the benefit of the reduced rate. The decision reflected a
continued adherence to the policy considerations governing initiation fees that
had guided the Union from the beginning.
These considerations, I find, were discriminatory, in that they were aimed
at exacting unequal initiation fees from employees classified on the basis of
whether or not they had refrained from joining when they were under no con-
tractual compulsion to do so.
Lest this analysis be misunderstood, two things should be made clear. First.
I agree with the Union that a finding of discrimination under 8 (b) (5) may not,
be predicated alone upon a reduction in initiation fees in the midst of the term
of a union-shop contract. Section 8 (b) (5) does not require a union to maintain.
its initiation fees at a constant level during the entire term employees are
covered thereby. Unless its purpose is to achieve some objective at variance with
the policies of the Act, a union is as free now as before to increase or decrease
its initiation fees at any time. It is not the reduction standing alone that is
given significance here, but the reduction tied in with other events, and the basis
on which it was made applicable, revealing as they do the Union's underlying.
discriminatory motive and intent. Secondly, I also agree with the Union that
Section 8 (b) (5) does not in all situations forbid the classification of employees.
into separate groups for the purpose of determining the amount of initiation fees
chargeable to each.18 Thus, to take but one obvious example, a sliding scale of
fees tied in with wages earned would clearly seem permissible. But if the
classification is to be permissible, it must not itself be discriminatory, that is,
it must not be antithetical to protected employee rights or basic policies of the
Act. The vice in the Union's classification lies in the basis upon which the lines
of separation were drawn Whether there was moral justification from the
Union's point of view in separating former "free riders" from others is not for
me to say. The Act as written guarantees all employees the right in the absence'
of a validly authorized and effective union-security clause to refrain from union.
membership. Any classification that would penalize employees who had chosen
to exercise that right, whatever their reasons might have been, is clearly in,
derogation of the Act's basic guarantees, and discriminatory within the ineau-
1e In discussing the closed shop generally in relation to the provisos to Section 8 (a) (3),,
the House Conference Report has this to say: (Rept. No. 510, p. 41).
In determining whether membership was available on the same terms as those gen-
erally applicable to other members, it must be borne in mind that in some unions the
dues and initiation fees of persons who became members many years ago may has e-
been more or less than currently in effect , or the terms or conditions of membership.
may have been different. The conference agreement Bence does not contemplate
availability of membership on the same terms as those applicable to all of the mem-
bers. . . .
FERRO STAMPING AND MANUFACTURING CO. - 1487
ing of Section 8 (b) (5). Cf. New York Shipbuilding. Corporation, 89 NLRB
1446; General American Aerocoach, 90 NLRB 239.
For reasons indicated before, I reject the Union's contention that it imposed
unequal initiation fees upon old and new employees only as a concession to the
Company. Upon all the evidence, I do not believe that the Company requested
that division, at least not initially, and certainly not on the precise basis on
which it was drawn. Even if the Company had, this would not have exculpated
the Union from responsibility for its own discriminatory action.
For the reasons indicated, I am persuaded and I find that the $15 initiation
fee was discriminatory under all the circumstances of this case. I further find,
that, on and after August 31, 1948, by requiring certain of the Company's em-
ployees covered by the union-shop contract to pay a fee in that amount as a
condition precedent to becoming members of the Union, the Union violated Section
S (b) (5) of the Act.
Left for consideration is ,the question, important for the remedy, of the iden-
tity of the employees discriminated against, and the extent, measured in money,
of the discriminatory overcharge. It is clear, of course, that the seven older
employees who were called into the Company's office on or after November 16,
1948, pursuant to the Union's "Please Take Action" letter and required to pay a
$15 initiation fee or lose their jobs were objects of discrimination. They are:
Blanche Woodin, Veronica Recker, Mildred Recker, Inez Harvey, Elizabeth
Garland, Hester Ash, and Michael Harvey. Mary Miranda, who refused to
pay, also falls in this group, although no reimbursement remedy may be ordered
for her. Sixteen other "older employees," while not directly threatened with
discharge by the Company, also paid $15 initiation fees under compulsion of the
effective union-shop clause." They are: Dean Beverlin, Vera Campbell, Harry
Fischer, Lorraine Fischer, Blanche Haughton, Jeanne Huber, Wilma Johnson
McGee, Genevieve Neubecker, Stanley Phelps, Alfred Reed, Ezoa Morey Strong,
Veda Wallace, Charlotte Wood, Daniel Stacy, Dorothy Tennant Ingraham, and
Thomas Stovac. These employees were members of the class against whom the
$15 fee was discriminatorily aimed. Since, as is here found, that fee became
illegal when the union shop became effective, it follows that the payments made
by them were exacted in violation of Section 8 (b) (5). Four employees-Veda
Wallace, Peggy Fitzpatrick, Katie Kriesche, and Henry (Gale) Stalter-are in
a somewhat different category, for although they are not classifiable in the group.
of "older employees" against whom the discrimination was directly aimed, they
nevertheless also paid $15 initiation fee. Because their payment of a fee in that
amount was a result of discriminatorily motivated action, albeit aimed at others,,
and because of the inequality between the fees charged them and the fees charged
other new employees who attained seniority during the same period, it is con-
cluded and found that they, too, were illegally discriminated against.
The extent to which discrimination occurred is important here only for the
purpose of fashioning the remedy. Since it appears that the nondiscriminatory
initiation fee ultimately set by the Union for employees covered by the union-
shop agreement was $5, and that in the case of others this was applied retroac-
tively to the date the union-shop clause became effective, it is concluded that
those found to have been discriminated against were required to overpay the
sum of $10 each, and, as a matter of remedy in order to effectuate the policies.
of the Act are entitled to reimbursement in that amount.
17 One "older employee"-Laura Kunsman-paid $15 on August 27, 1948, but because
her payment was made before the union-shop clause became effective, the protection-
of Section 8 (b) (5) is found not to be applicable to her.
c
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The discharge of Mary Miranda
1. Events leading to the discharge
Mary Miranda, employed by the Company since 1939, was a former member
of the United Mine Workers, although never active in that organization, nor one
of those who after the advent of the Union had attended meetings at Blanche
Woodin's home. She was one of those who on August 4, 1948, when the Union
was demanding $2 initiation fees and 4 months' back dues as a condition of
membership, sought to join the Union by tendering $2 initiation fees and 1
month's dues. Her tender at that time was rejected as insufficient. At no time
thereafter, whether before or after August 31, 1948, did she attempt to join the
Union nor make any tender of initiation fees.
On November 16, 1948, when the Union submitted its "Please Take Action"
letter to the Company, it listed Miranda's name as among those who had failed
to join. Miranda was on leave of absence when the letter was submitted, and
consequently was not included among those who were called into the Company's
personnel office that clay and advised by Labor Relations Director Beckett that
they would either have to join the Union or suffer discharge. Upon her return
to work on November 22, 1948, however, she was at once summoned to Beckett's
office, informed of the "Please Take Action" list, and advised that all but she had
now joined. Miranda told Beckett she considered the $15 initiation fee too high
and she would not join. In response, Beckett advised Miranda to pay the fee
then and contest it later, adding that if she failed to join the Union he would
be required to discharge her, under the terms of the union contract. Expressing
the fear that lie would have a picket line about the plant it he permitted her to
remain at work without joining the Union, Beckett suggested that Miranda think
the matter over until 11 a. in. and let him know.
At 10: 30 a. in. that same clay Miranda was approached by Foreman Frank
Keiische and asked if she had signed up with the Union. When Miranda replied
that she had not, Kerische left, but returned about 25 minutes later to tell her
to punch out At the employment office, Employment Manager Robert Glover
confirmed the instructions given her by Kerische. Paying her the wages due
her, Glover gave her a termination notice. The notice stated that she had been
"discharged," because she had "refused to join Union as required by Contract."
About a week later, Miranda filed with the Board charges against both the
Company and the Union, alleging that she had been discriminatorily discharged
by the Company at the behest of the Union. Copies of the charges were served
on December 2, 1948 Miranda has never been reinstated to her former position
and job i ights In reply to a letter addressed by her to the Company on May 12,
1949, the Company replied that it was willing to reinstate her but that the Union
would not agree About a year later, on May 29, 1950, while the hearing was
in, progress, the Company employed her as a new employee without seniority, but
a week biter laid her off for lack of work.
Certain events connected with Miranda's termination have been here set out
with what may appear to be unnecessary detail because of the position the Com-
pany now takes that Miranda was not discharged at all, but that she quit In
its answer as originally filed, the Company admitted that 1\ Ii•anda was discharged,
but during the course of the hearing it amended its answer to adopt the position
on which it now stands The Respondent's position appears to be predicated
upon the fact that Miranda was never told by Beckett in so many words that
she was discharged, and that Beckett's conversation with her earlier that morn-
ing involved no more than an explanation of the consequences of the union-
shop clause The Company argues that because Miranda did not return to Beck-
FERRO STAMPING AND MANUFACTURING CO. 1489
ett and advise him of her decision, it deprived the Company of the opportunity
it would otherwise have had of investigating all the facts and giving it a final
opportunity to decide whether to discharge her. The Company's position, which
it argues at considerable length in its brief, impresses me as fanciful, largely,
perhaps, because it ignores certain facts which on the record of this case stand
undisputed. Thus for example, it completely ignores Foreman Kerische's inter-
rogation of Miranda at 10: 30 a. in., her response thereto, Kerische's instruction
to Miranda to punch out, Glover's confirmation of that instruction, the termina-
tion notice given her stating that she was "discharged," and the Company's
position after the filing of the charge, all clearly inconsistent with the conclusion
that Miranda quit. Other considerations aside, these facts alone are more than
sufficient conclusively to establish that Miranda's termination flowed not from
her decision but from the Company's, and was the result not of her action, but
of that of the Company. It is so found.
2. The issues
The complaints allege that the Company by discharging Miranda violated
Section 8 ( a) (3) and Section 8 (a) (1) of the Act, and that the Union by causing
the Company to discharge her violated Section 8 ( b) (2) and Section 8 (b) (1)
(A). The complaints proceed upon two alternative theories. The first is that
the union -shop clause under which Miranda's discharge was effected was illegal
and unenforceable for failure to meet the statutory restrictions of Section 8 (a)
(3). Because of that, it is alleged , the discharge of Miranda made pursuant
thereto must necessarily be violative of the law . That theory of the General
Counsel need not detain us now. It has been considered , and rejected, in an
earlier section of this Report . The alternative theory of the complaint assumes
the legality of the union -shop clause. But it asserts that its application by the
Company and by the Union to the case of Miranda was violative of the sections
mentioned , because the Union, by requiring of her a discriminatory initiation fee,
failed to make membership available to her on terms and conditions generally
applicable to other members , and denied her membership for reasons other than
her failure to tender the initiation fees uniformly required as a condition of
acquiring membership With that position the Respondents take issue, upon
grounds indicated below.
3. The statutory provisions involved and their application
For convenient reference there is here set forth the more pertinent provisions
of Section 8 (a) (3) and 8 (b) (2) on the interpretation of which the discussion
below turns:
Section 8 (a) (3) [makes it an unfair labor practice for an employer by
discrimination in regard co hire or tenure of employment to encourage
membership in a union, but exempts from the bar discharges pursuant to
an authorized union shop contract] . . . Provided further, That no employer
shall justify any discrimination against an employee for membership in a
labor organization (A) if he has reasonable grounds for believing that such
membership was not available to the employee on the same terms and condi-
tions generally applicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or terminated for reasons
other than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining
membership.
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 em-
943732-51-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee in violation of subsection (a) (3) or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership.
Analysis here proceeds from two facts found established by the record of this
case. The first is that the $15 initiation fee which Miranda was required to pay
as a condition of membership in the Union was discriminatory and not the fee
generally applicable to applicants for membership at the Company's plant.
Although this fact is contested, the issue has been fully resolved in the preceding
subdivision of this Report and need not be considered anew. The second fact is
that Miranda did not prior to her discharge make application for membership in
the Union by tendering initiation fees then being demanded as a condition of
membership. This fact is apparently disputed by the General Counsel Who
points to the $2 tender made by Miranda in early August But at that time the
Union was demanding of Miranda and others similarly situated the equivalent
of an $8 initiation fee as a condition of membership, and since the union shop
was not yet in force the Union was then still free to set its own terms for ad-
mission on any basis it saw fit, though that basis be arbitrary, discriminatory, or
unequal. Miranda's tender of $2 in lieu of the $8 the Union was demanding at
that time may not, it is therefore found, be deemed a valid tender or application
for membership.
Out immediate interest is confined to determining whether on these established
facts Section 8 (a) (3) and S (b) (2) apply to spell out violations by the Com-
pany and the Union, respectively.18
In light of the finding aliendy made with regard to the unequal and discrimi-
natoiy initiation fees demanded by the Union, it is clear that proviso (A) of
Section S (a) (3) governs to impose liability upon the Company if it acted with
notice of the facts Under that proviso, it is unimportant that Miranda never
tendered initiation fees or applied for membership ; it is enough that "member-
ship was not available to her on the same terms and conditions generally appli-
cable to other members" Proviso (A), as the Board has stated, "protects any
employee discriminatorily excluded from membership whether or not [a] tender
was made " Union Starch & Refining Company, 87 NLRB 779. There is no
validity to the Company's defense, urged also by the Union, that the Union's
classification of employees into two groups was a proper one. Granting that
proviso (A) does not in all situations exclude the classification of employees into
different groups for the purpose of fixing initiation fees, it cannot in any event
permit a classification bottomed upon discriminatory considerations, and that
precisely is the situation that has been found to prevail here.
While agreeing that a discharge in violation of proviso (A) imposes liability
upon an employer under Section S (a) (3), the Union contends that it does not
upon a labor organization under Section 8 (b) (2). The Union argues that
before a labor organization causing a discharge can be found to have violated
Section 8 (b) (2) in a union-shop situation, a preliminary finding must be made
that membership was denied or terminated for some reason other than failure
to tender initiation fees or dues uniformly required. Because Miranda failed
to tender initiation fees-the Union's argument concludes-she is not entitled
to the protection of 8 (b) (2). I am unable to accept the Union's restrictive
18 For present purposes, we assume the element of notice ( 1 e , "reasonable grounds
for believing") required for a finding of a Section 8 (a) (3) violation against the Com-
pany We assume also that the Union "caused" Miranda's discharge within the Section
S (b) (2) intendment of that term.. Though these are matters in dispute, we reserve their
consideration for later
FERRO STAMPING AND MANUFACTURING CO . 1491
interpretation of 8 (b) (2). That section does not, it is true, expressly repeat
the condition stated in proviso (A), although it does reiterate the one found
in proviso (B). But Section 8 (b) (2) does add that it is an unfair labor
practice for a union to cause an employer "to discriminate against an employee
in violation of subsection (a) (3)." The practical effect of that addition is to
incorporate by reference the provisions of proviso (A). For, if it is a violation
of Section 8 (a) (3) for an employer under a union-shop agreement to discharge
an employee for whom membership is not available on terms and conditions
generally applicable, a fortiori it would seem to be a violation of Section 8 (b) (2),
for a labor organization to cause the discharge of that employee.
The Union, nevertheless, insists that this is not so. It argues that the Section
8 (b) (2) language expressly relating to a "violation of subsection a (3)" was
inserted in conference solely for the purpose of preventing unions from causing
employers to discriminate against employees where an agreement authorized
under Section 8 (a) (3) was not in effect, and that this particular phrase was
not designed, and may not be construed, to extend to union-shop situations.
The Union rests its argument mainly upon a statement of Senator Taft set out
in the marginal note.1°
The Union's argument is more ingenious than sound. Where, as here, the
language of the statute is clear, legislative history alone is a weak crutch upon
which to lean. For it is a fundamental principle of statutory construction that
if the words of a statute are.plain and unambiguous, it is improper to look
behind the statute for purposes of interpretation. In any event, I am satis-
fied on the basis of all relevant legislative history that the interpretation which
the Union would ascribe to 8 (b) (2) is not supported. I think it clear that
Congress intended 8 (b) (2) to reach every situation of Section 8 (a) (3)
discrimination caused by a union, including the discharge of an employee to
whom membership was not available on the same terms and conditions generally
applicable to other members.20
19 On June 5, 1947, Senator Taft placed in the Congressional Record a summary of the
principal differences between the conference agreement and the bill which the Senate
passed With reference to 8 (b) (2) the summary stated (93 Cong. Rec 6600) :
The House managers also directed the attention of the Senate conferees to the fact
that while the Senate bill forbade unions to discriminate against employees with
respect to whom membership in a labor organization had been denied on some ground
other than a failure to pay dues and initiation fees it did not expressly forbid a
union to attempt to bring about the discharge of an employee who is not covered
by a valid compulsory membership agreement Of course a discharge under such
circumstances has been repeatedly held to be a violation of subsection 8 (3) of the
present act by the Board, and since it was not the intent of the Senate to make
unlawful coercion by a labor organization against employees covered by compulsory
membership agreements and yet to tolerate attempts at discrimination against em-
ployees not so covered, the conferees agreed to the adoption of the phrase "in violation
of subsection 8 (3)."
20 See, e. g, H Rept. No 245, 80th Cong., 1st Sess, p 32; Sen. Rept No. 105, 80th Cong.
let Sess. p 427 ; H. Conf. Rep No. 510, pp. 41, 43. See, also, comments of Senator Taft
in opposition to Ball amendment to abolish the union shop, 93 Cong. Rep. 5087-8, and par-
ticularly the following, at p. 5087:
We say [in the Senate bill] that if at that time [30 days after the effective date of a
union shop] the union will not admit the employee on the same terms and conditions
as those on which any other member of the union is admitted to it nevertheless the
employer may continue to employ that man.
The comments of Senator Taft in the summary analysis of conference changes (93 Cong.
Rec 6600) upon which the Union relies are not inconsistent with the conclusion reached
above. A careful reading of it reveals that it was always the intent of the Senate to have
8 (b) (2) cover all attempts by a union to bring about unlawful employer discrimination
whatever form it might take, and that, the phrase in question was added for the purpose
of closing all possible loopholes.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But even if the Union's restricted interpretation were assumed correct, the
Union could still not justify its action under that portion of 8 (b) (2) which,
in conformity with proviso (B) of 8 (a) (3), prohibits a discharge in a union-
shop situation where there has been no "failure to tender . . . the initiation
fees uniformly required as a condition of acquiring . . . membership." The
initiation fee demanded of Miranda was not a "uniformly required" fee but,
as has been found, was one discriminatorily imposed. It was not incumbent
upon Miranda under these circumstances either to submit to the discrimination
and tender the full amount demanded, or to speculate on what lesser amount
might be proper and perform the obviously futile gesture of tendering that
amount. The statutory language neither requires nor implies the necessity
of such action as a protection against discharge. True, Section 8 (b) (2), as
well as proviso (B) of Section 8 (a) (3), speaks of a denial of membership.
And I am aware that membership is not ordinarily "denied" unless it has been
applied for. But, as the Board has held, the term "denied" is not literally
to be read as requiring applications for membership in all cases . "We cannot
[the Board has said] assume that Congress by using the term "denied" intended
to permit unions to forestall applications for membership and thereby circum-
vent the policy expressed in proviso (B)." Union Starch and Refining Co.,
supra. Where, as here, a union imposes discriminatory initiation fees, it must
in law be regarded as having "denied" to those discriminated against member-
ship on a ground other than the single one which 8 (b) (2) and proviso (B)
authorize.
It follows that Section 8 (a) (3) and 8 (b) (2) apply to spell out violations by
the Company and the Union, respectively-unless indeed the record can be
said to support the Company's claim, that it had no reasonable grounds to
believe that membership was unavailable to Miranda on the terms and con-
ditions generally applicable, and the Union's claim that it did not in fact "cause"
the discharge. It is to a consideration of these claims that we now turn.
4. The case against the Company; violation of Section 8 (a) (3) and 8 (a) (1)
It will be recalled that on November 6, 1948, the Union's executive committee
passed a resolution, ratified by the membership on November 11, 1948, which in
effect discriminatorily classified nonmembers into two groups for the purpose
of determining the initiation fees required of them. Miranda was in the group
of older employees required to pay the higher fee of $15. The question now is
whether on November 22, 1948, the Company was on notice that the fee demanded
of Miranda was not the fee, uniformly required and that membership was not
available to her on the terms and conditions generally applicable.
The Company denies such notice, and in support of its position relies upon
the testimony of William Beckett, its labor relations director and its only
witness. Testifying as an adverse party at the opening of the hearing, Beckett
stated that he first "officially" learned of the reduction in initiation fees for
new employees in early December when the Union's checkoff list for that month
was submitted to him. But he admitted that about the middle of November he
had received "unofficial notice" from "general talk about the plant and from the
[Union] committee themselves that the membership had taken such action."
Later, however, Beckett altered his testimony. Testifying as a witness for the
Company toward the close of the hearing. Beckett stated that it was not until
about the end of November that he had first heard the rumors to which he had
previously alluded. Beckett at that time denied that he knew of the lack of uni-
formity in initiation fees on November 22, when Miranda was discharged.
FERRO STAMPING AND MANUFACTURING CO . 1493
There is, however, credited evidence to the contrary. Thus, Blanche Woodin
testified without denial that on November 16, while she and others were at the
personnel office to which they had been summoned by Beckett pursuant to the
"Please Take Action" letter, she inquired of Hammond in the presence of Beckett
whether it was not true that new employees were being permitted to come in for
$5, and Hammond agreed that it was true. Beckett made no comment at that
time, although it appears that he was in a position to hear what was said.
Thus, too, Harvey Hammond, the Union's financial secretary, testified that
the "Please Take Action" list divided employees into two groups because $15
,was due from the employees listed in the upper group and $5 from those listed
in the lower one. He was asked how Beckett was supposed to know that, and
he replied, "Because I told him." Hammond fixed the time as November 16.
Earlier in the hearing Hammond had testified that at the time he handed Beckett
the "Take Action" list he could not recall telling him the amount due from each
employee mentioned thereon. Even then, however, he had indicated his belief
that Beckett knew that a $15 initiation fee was not being claimed from all
employees named in the list. Hammond, under cross-examination by the Com-
pany, accounted for the seeming discrepancy in his testimony, by explaining that
his conversation with Beckett at the time he handed Beckett the "Take Action"
letter was not the only one he had with Beckett on the subject. Hammond, was
positive that sometime on November 16 he discussed with Beckett the subject of
the $5 initiation fee for new employees. Throughout, Hammond showed no pre-
disposition to aid the case of the General Counsel or to injure that of the Com-
pany-the converse, if anything, was true-and I believe his positive testimony
concerning his discussion of the $5 initiation fee with Beckett on November 16,
which was 6 days before Miranda's discharge.
Apart from the affirmative contrary testimony just adverted to, Beckett's
denial of knowledge impressed me as implausible for other reasons. According
to Beckett, he had, since early September, been urging the Union to reduce its
initiation fee for new employees ; he had done so almost daily in his contacts
with union committeemen; he had done so "as often as [he] could, and as loud
as [he] could and as long as [he] could." According to Beckett, also, at least
certain union officials were sympathetic with his position from the outset. To
me it seems wholly incredible under these circumstances that the union officials,
having made a decision favorable to the Company on November 6, and having
had it ratified by the membership on November 11, would have concealed the
decision fromethe Company until late November. Beckett could offer no explana-
tion why they should do so, and none occurs to me. I think it far more prob-
able that the "unofficial notice" from "general talk about the plant and from the
committee themselves," reached Beckett about the time of the union meeting,
which would place it about the middle of November as he first testified, rather
than weeks later when the news was already stale.
Upon all the evidence I am persuaded, and I find, that Beckett, as agent of
the Company, on November 22, 1948, knew of the unequal initiation fees the
Union was requiring at that time. I am also persuaded that Beckett had reason-
able grounds then to believe that the distinction between the new employees and
the older employees was drawn along the discriminatory lines found above.
Beckett, the record makes clear, was aware of the Union's efforts to organize
nonunion members in August, of the controversy that had ensued with recalci-
trant older employees who were unwilling to join on the Union's terms, of the
choice given their older employees to come in by a given deadline or face a
$15 initiation fee, and of the Union's reluctance to retreat from its position
with regard to older employees as contrasted to its willingness to reduce fees
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for newer employees who had not had a chance to come in earlier. Beckett
may not have been aware of the legal implications of the discriminatory classi-
fication, but it is impossible for me to believe under these circumstances that
the underlying basis for the classification could have evaded him.
Upon the entire record, it is found that the Company discharged Mary Miranda
because she was a nonmember of the Union, when it had reasonable grounds for
believing that membership was not available to her on the same terms and con-
ditions generally applicable to other members, and that membership was denied
her for reasons other than failure to tender initiation fees uniformly required
as a condition of acquiring membership. It is therefore concluded that by dis-
charging Miranda, the Company discriminated in regard to her hire and tenure
of employment to encourage membership in the Union in violation of Section
8 (a) (3) of the Act, and thereby also interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in Section 7, in violation of
Section 8 (a) (I)?'
5. The case against the Union; violation of 8 (b ) ( 2) and 8 (b) (1) (A)
Did the Union cause the Company to discriminate against Miranda? The
Union contends it did not . It argues that all it did was request the Company
to enforce the provisions of the union -shop contract , and that such a request
unaccompanied by threats of reprisal or force is nothing more than persuasion
protected by Section 8 (c) of the Act . I cannot agree . Where, as here , a union
asserts a claimed contractual right and seeks to invoke a claimed contractual
obligation , it does more than express a view , argument , or opinion-which is
all that Section 8 (c) privileges . In these circumstances the Union does not
seek merely to persuade to action ; it is insisting upon the fulfillment of what
it regards as its legally enforceable due. The dictum in Denver Building Trades
Council ( Henry Shore ), 90 NLRB 1768 , upon which the Union relies, is not
inconsistent with this view. In that case there was absent any contractual
relationship between the union involved and the employee from whom that
union was requesting discriminatory action. It was there observed that a
different conclusion would have been suggested had it appeared that the union
making the demand occupied vis-a-vis the employer an economic relationship
placing it in a position to enforce compliance with its demand by action not
privileged . Direct authority against the Union's position is to be found in the
recently decided New York Shipbuilding Corporation case, 89 NLRB 1446. In
that case the Board , without rationale on this particular point, -found that a
union violated Section 8 ( b) (2) by causing an employee 's discharge , although
it appears that the union did no more than request the employer illegally to
apply a valid union-security agreement.
It is found that the Union attempted to and did cause the Company to dis-
charge Mary Miranda to whom the Union had denied membership on some
ground other than her failure to tender the initiation fees uniformly required
as a condition of acquiring membership . For that reason , and because Miranda's
discharge was in violation of Section 8 (a) (3), it is concluded that the Union
21In reaching this conclusion, I have not overlooked the Company's additional conten-
tion that it acted in good faith in an effort to follow what it believed to be the requirements
of the contract and the law, and without any deliberate desire to discriminate against or
treat Miranda unfairly I have no reason to doubt the truth of this assertion. But, as
has been often held, good motives do not nullify unfair labor practices. N. L. R. B. v.
Newport News Shipbuilding and Dry Dock Company, 308 U. S. 241, 251. Under com-
parable circumstances, the Board has rejected as without merit pleas of companies to be
excused from liability See, e. g, Lloyd A. Fry Roofing Company, 89 NLRB 854; General
American Transportation Corp, 90 NLRB 239
FERRO STAMPING AND MANUFACTURING CO . 1495
by attempting to and causing the discharge violated Section 8 (b) (2). It is
further found that the Union by causing Miranda's discharge restrained and
coerced employees in the exercise of the rights guaranteed by Section 7, and
thereby also violated Section 8 (b) (1) (A) of the Act. See Union Starch and
Refining Company, supra; Clara-Val Packing Company, 87 NLRB 703.
F. Independent acts of alleged restraint and coercion by the Union
Aside from conduct separately considered in other sections of this Report,
the General Counsel claims that the Union violated Section 8 (b) (1) (A) by
engaging in the conduct classified below :
1. Requiring employees beginning on July 29, 1948 to pay back dues for
May, June, and July, or its equivalent, as a condition to acquiring member-
ship, and increasing the initiation fee to $15, effective August 20, 1948
The theory of the General Counsel is that these admission requirements were
imposed upon older employees by way of reprisal for their failure to join the
Union before the union-shop election of July 21. Granting this to be true, it does
not follow that the Union violated Section 8 (b) (1) (A) during the period
preceding August 31, 1948, the effective date of the union-shop clause in the con-
tract. The proviso to Section 8 (b) (1) (A) expressly states:
That this paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of mem-
bership therein.
This proviso reflects, what the legislative history confirms, that it was not
the intent of Congress to interfere with the internal operations of labor organ-
izations , including its admission requirements-at least not until employees
become covered by a compulsory membership contract, at which time the restric-
tions of Section 8 (b) (5) come into play. Until such time as employees become
contractually obliged to join, the admission fees that a union imposes, and the
basis in which such fees are imposed, whether retaliatory or not, are matters
lying outside the purview of the Act or the scrutiny of the Board. It is accord-
ingly found that the Union did not by its admission requirements prior to
August 31, 1948, violate Section 8 (b) (1) (A).
Whether the Union violated Section 8 (b) (1) (A) after August 31, 1948, by
continuing to require of certain employees an initiation fee of $15, herein found
discriminatory, is another question. Although raised by the complaint, it is not
argued in the General Counsel's brief nor pressed as an issue to be decided.
The conduct of the Union in that regard has already been found a violation of
Section 8 (b) (5) As a practical matter, it would add nothing to the scope
of the order or the breadth of the remedy, if it were also found to be a violation
of 8 (b) (1) (A). For these reasons it seems to me purposeless to attempt
here to answer what at most is an academic question. This case has enough
difficult issues as it is, without reaching out to decide superfluous ones.
2. Threats to increase initiation fees for employees who failed to join by a fixed
date
It will be recalled that the Union on July 29, 1948, voted to accept the recom-
mendation of its executive committee giving "older employees" a deadline until
August 15, 1948, to come into the Union upon payment of a $2 initiation fee
plus 4 months' dues (later changed to a $6.50 initiation fee plus $1. 50 dues)
and providing that after the deadline the initiation fee was to be $15. To
implement that resolution, union stewards, with the permission of the Company,
circulated among workers in the plant on August 13, 1948, and notified non-
0
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members that unless they joined the Union by the end of the week , the initiation
fee would be increased for them to $15 the following week. There is evidence
that similar warnings were given on other occasions before the increased fee
actually was made effective , and that at least one employee, Mary Miranda, was
additionally warned specifically that if she refused to join then and also refused
to pay the increased fee after it went into effect, she would be fired.
Did the Union by such conduct violate Section 8 (b) (1) (A) ? On the facts
of this case I,find that it did. On the entire record, I am satisfied that the
Union's conduct in announcing a future increase in dues and in fixing a dead-
line for employees to come in at a lower cost was designed as a threat of
economic reprisal , in the form of increased admission costs, against those who
did not join at once. The threat had implicit in it, even when not expressed,
the additional warning that the reprisal could and would be exacted through
the sanctions of the union -shop clause, which , while not yet effective , was then
imminent. Since the threat of higher initiation fees was calculated to force
employees into the Union at a time when the union -shop clause was not yet
effective and they could not legally be obliged to join, it clearly involved restraint
and coercion of employees in the exercise of their protected right to refrain
from union membership , and as such fell within the orbit of 8 (b ) (1) (A).
That is not to suggest , however, that a union may not in any situation announce
an increase in initiation fees, effective as of a future date, without running afoul
of the statute . Much depends on the purpose-whether it is directed by lawful
considerations or by considerations the law condemns 22 In this case, it was
the latter . The entire record "reflects that the announced increase was not
designed simply as advance notice of a new fee to be generally applicable for
the indefinite future, but as a coercive measure directed against certain re-
calcitrant employees who were insisting upon exercising their statutory right
to refrain from membership in the Union.
3. Alleged threats to cause the discharge of employees for nonmembership in
the Union
Two employees testified directly on this subject. One-Dorothy Tennant
Ingraham-testified that in August 1948 she was told on one occasion by Shop
Steward Fred Krauser, and on several by Chief Steward John Little, that she
would be fired if she did not join the Union. Ingraham's further testimony re-
veals, however, that these statements were made to her with specific reference
to the contract, that nothing was said to her about reprisal action outside the
framework of the contract, and that she was given to understand that no action
could in any event be taken against her until 30 days after the union-shop certifi-
cation. The other witness-Mary Robinson-testified that in early August
she was told by Stewardess Florence Todink that the Union had an under-
standing with the Company that employees would have to join the Union or
be let out. Robinson also testified that she understood the reference to be to
the contract.
I am not persuaded that the foregoing testimony establishes any violation of
Section 8 (b) (1) (A). It appears that at the time the statements were made
the union-shop agreement had already been negotiated, the union-shop election
already held, and only formal certification was being awaited. The statements
22 It is analogous to wage increases announced by employers during the existence of an
organizational campaign. The mere existence of the campaign does not itself foreclose
an employer from granting or announcing economic benefits. "What is unlawful under
the Act Is the Employer's granting or announcing such benefits . . . for the purpose of
causing the employees to accept or reject a representative for collective bargaining"
Hudson Hosiery Company, 72 NLRB 1434, 1437.
FERRO STAMPING AND MANUFACTURING CO . 1497
are reasonably to be construed as involving merely a fair explanation of the
union-shop provisions. The stated consequences of not joining, I am satisfied,
amounted merely to a prediction and not to a threat of economic reprisal. See
Tennessee Coach Co., 84 NLRB 703. It will be recommended that this allegation
be dismissed.
4. Requiring employees to sign checkoff cards as a condition of admission to
membership
To support a finding of illegal coercion in this regard, the General Counsel
relies upon the testimony of the following witnesses :
(a) Annie Marie Granden testified that on or about August 13, 1948, she
overheard Shop Stewardess Florence Todink inform Chief Steward John Little
that many employees did not want to sign checkoff authorizations. In response,
Little commented that "they would have to-if they didn't let them worry
about it." As he made his comment, Granden's testimony continued, Little turned
to Todink to tell her it would be perfectly all right for her to take Granden's
money for dues and initiation fees. Granden joined the Union that day without
signing a checkoff authorization. The documentary evidence discloses that nu-
merous other employees joined at about the same time without signing such
authorizations.
(b) Ada Beemer testified that early in August 1948, Shop Steward Fred
Krauser told her "that we would not be able to join the Union unless we
signed the check-off card or be willing to." Subsequently, on August 10, 1948,
Beemer joined the Union without signing a checkoff authorization. She did
sign one the following month, however, at the request of union officials who
told her that such an arrangement would make it easier for them to take
care of the Union's business.
(c) Ezoa Morey Strong testified that in early August, while Shop Steward
Todink was signing up employee Helen Daniels in her presence, Todink asked
Daniels to sign a checkoff card. Daniels inquired whether this was obligatory,
and Todink replied that Chief Steward Little had told her it was. When the
witness advised Daniels that the contract did not require checkoffs, Todink said
she would see Little about it. On August 14, Daniels was admitted to the Union,
paying her fees and dues in cash. She did not sign a checkoff authorization,
according to the documentary evidence.
(d) Dale Whitehead testified that before joining the Union he sought out
Little and asked him whether it would be necessary to sign a checkoff card.
Little said it would. Whitehead took the position that the contract did not
require it, and Little disagreed. In the course of their ensuing discussion con-
cerning the checkoff provision of the contract, Little at one point made the com-
ment that employees had to sign the checkoff card or they would not be working
there any longer. About a week later, Whitehead joined the Union, no request
being then made of him for a checkoff.
(e) Dorothy Tennant Ingraham, who joined in October but did not sign a
checkoff until January, testified that Fred Krauser told her and two other em-
ployees, Myrtle Ielrigle and Flossie Wetherbee, that they had to sign checkoff
cards in order to be in good standing in the Union. On direct examination
Ingraham fixed the date as September 14, but on cross-examination she testified
that she was neither able to recall the date, nor place it as before or after the
date of the union-shop certification. Ingraham's testimony throughout revealed
confusion as to dates. Both Helrigle and Wetherbee, the record shows, joined
the Union in early August and actually signed checkoff authorizations sometime
before September 14. Because of that, and because of the testimony of Ingraham
involving apparently related incidents established by the record as occurring
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in August, I am persuaded and find that Krauser's comments were not made in
September as Ingraham testified on direct examination, but in August and prob-
ably during the early part of that month.
The testimony of the foregoing witnesses was not specifically denied'2 The
Union, however, through its president, Yorwarth, offered general testimony that
it did not have a policy of requiring employees to sign checkoff authorizations, nor
one of threatening employees with loss of their job rights if they failed to sign
such authorizations. Yorwarth's testimony, generally speaking, appears to be
supported by the documentary evidence showing numerous cash collections of
dues and initiation fees, as well as by the testimony of employee witnesses called
by the General Counsel reflecting that when ready to join they were freely ad-
mitted into the Union without being required to sign checkoff authorizations.
The specific evidence adverted to above establishes at most that during a short
period in early August, Chief Steward Little and certain shop stewards acting
under his instructions were pursuing a policy of insisting upon checkoff authoriza-
tions as a condition of membership. This policy, apparently abandoned before
the middle of August, was pursued during a period when employees were not yet
required to join the Union as a condition of employment.
Without attempting to decide what the rule might be in a union-shop situation,
I think it clear that where employees are not covered by a compulsory membership
agreement, a union requirement, standing alone, that employees as a condition
of membership agree to accept the checkoff as a method for paying their dues,
is outside the reach of Section 8 (b) (1) (A). The proviso to Section 8 (b)
(1 ) (A), expressing Congress' intent "not [to] impair the right of a labor organi-
zation to prescribe its own rules with respect to the acquisition or retention
of membership therein" is alone enough to remove all doubt on that score. Nor
do I view the specific evidence relied upon as sufficient to establish, over and
above such a requirement for the acquisition of membership, independent coercion
to compel employees to sign checkoff authorizations: Granden's testimony, fully
and fairly read, cancels out any suggestion of coercion that may be found in
part of it. In the testimony of Beemer, Strong, and Ingraham, there is to be
found no threat of economic reprisal. Whitehead's testimony alone reflects a
statement by a union official concerning the effect failure to authorize a checkoff
might have on an employee's job rights. But even if Little's statement to White-
head, considered in the context of the discussion in which it was made, may be
considered as a threat of economic reprisal rather than an expression of a view,
I am unable in the light of all the evidence to regard that isolated statement as
sufficiently substantial to support a finding that the Union engaged in restraint
and coercion to compel employees to sign checkoff authorizations. For all the
reasons indicated, I shall recommend dismissal of the allegation of the complaint
seeking such a finding.
5. Making cash payments of dues difficult and inconvenient
The General Counsel in his brief contends additionally that beginning about
November 1948, the Union violated Section 8 (b) (1) (A), by "coercing employees
to sign check-off cards by throwing obstacles in the path of members who had
elected not to sign check-off cards so or to make the cash payment of dues
difficult and inconvenient, thereby subjecting the member to the risk of delin-
quency in dues payments." Much of the testimony offered by the General Coun-
sel on that point, either because of, its hearsay character or for other reasons,
22 Another witness , Lorraine Fischer , also gave testimony on this point , but her testi-
mony, not adverted to or relied upon by the General Counsel in his brief, is found too
indefinite , confusing , and contradictory to be given probative value.
FERRO STAMPING AND MANUFACTURING CO. 1499
is found to be without probative value?4 The Respondent's contention, if sup-
portable at all, must be predicated upon the testimony of two witnesses. One,
Wilma McGee, testified and it is found, that about November 1, 1948, she offered
a month's dues to Shop Steward John Eickhorn who refused to take it, saying
he had orders not to, and that later the same day she was told by Chief Steward
Little, of whom she inquired concerning the matter, that employees "had to pay
it after a union meeting or else on the check-off card." 26 The other, Mary Robin-
son, testified similarly, and it is found, that about the same time while discussing
her dues payment with the same steward, she was told by him that there was
a new rule requiring employees to pay their dues at union meetings 24 The Union,
through Hammond, denied that any such rule was ever promulgated or put into
general practice, although it was admitted that the subject was discussed at
union meetings.
Although I consider the testimony of McGee and Robinson as sufficient to sup-
port a finding that the Union on certain occasions, if not as a matter of general
policy, demanded of certain employees that they pay dues at union meetings or
else by checkoff, I do not believe that this establishes a violation of Section 8 (b)
(1) (A). A rule restricting the time and place for collection of dues is no more
than an internal union regulation, and as such appears to be protected from the
reach of Section 8 (b) (1) (A) by its proviso. Even apart from the proviso,
however, I am not satisfied that the supporting evidence establishes the existence
of that kind of restraint and coercion which, according to the decisions of the
Board, Section 8 (b) (1) (A) was alone designed to eliminate. See National
Maritime Union of America, 78 NLRB 971; Perry Norvell Company, 80 NLRB 225.
Merely because the restriction imposed by the Union may have been designed to
or actually achieved the effect of persuading employees to sign checkoff agree-
ments rather than incur the risk of dues delinquency, does not in my opinion
convert otherwise lawful union action into illegal coercion. Finding as I do that
the position of the General Counsel in this regard has not been sustained, I shall
recommend /dismissal of the allegation to which it relates 27
24 Thus, Blanche Woodin testified that in November union stewards told employees
they could no longer pay dues at the plant, and would either have to pay dues at union
meetings or else sign checkoff authorizations but upon cross-examination she admitted
that she had only hearsay sources of information. Stovac and Whitehead testified that
they "believed" they saw bulletin board notices that members had to pay dues at the
end of the monthly meetings or else sign checkoff authorizations ; but both admitted
upon cross-examination that they were uncertain of the fact and could not swear to it
under oath. Woodin, whose zealousness in collecting information that could be used
against the Union in this proceeding was apparent, and who, I am confident, would have
remembered such a notice had it been posted, testified she never saw it. Lorraine Fischer
testified that the Union announced a rule in December that dues were payable only at
monthly meetings ; but she was unable to state on cross-examination when, where, or by
whom she heard the rule announced As previously found, Fischer's testimony was
indefinite and contradictory, and is viewed as unreliable.
22 Although Eickhorn testified he could not recall the incident, McGee's testimony is
credited. Little did not testify.
26A third witness, Ezoa Morey Strong, although testifying at one point that such a
rule was announced at a union meeting, later revealed in her testimony that it was not
an official announcement, but merely a statement by some unidentified person during a
discussion of the subject to the effect that it was too burdensome for stewards to collect
dues, and that dues should be paid either at meetings or through checkoff arrangements.
27 The conclusion reached on other grounds makes it unnecessary to decide whether a
violation of Section 8 (b) (1) (A) would have been spelled out had restraint and coercion
been factually established. It is not altogether clear that the rights guaranteed by
Section 7 encompass a right of employetsd who are already members of a union and who
are already obliged by virtue of a valid union-security agreement to make dues payments,
to refrain from authorizing the collection of their legally incurred dues by the checkoff
method rather than by some other. Cf. Salant & Salant, Inc., 88 NLRB 816.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The discharge of Thomas Stovac
1. The facts
The facts are undisputed. Thomas Stovac, employed by the Company since
1940, had been a member of the United Mine Workers bargaining committee, and,
after that organization was displaced by the Union as bargaining representative,
had been one of the small group of employees who attended United Mine Workers'
meetings at Blanche Woodin's home. Stovac was among those who in early
August tendered the Union's $2 initiation fee and 1 month's dues with knowledge
that the Union was then requiring 4 months' back dues as a condition for admis-
sion. After his tender was rejected, he made no effort to join the Union until
September 30, 1948, the thirtieth day following the effective date of the union-
shop clause. His tender of $15 dues on that day was rejected by Chief Steward
Little. However, at the suggestion of the Company, Stovac mailed a money order
in that amount to Financial Secretary Hammond, who a few days later delivered
to him an official receipt indicating his admission into the Union. The receipt
had printed thereon the following reminder :
You are formally responsible for the payment of your dues. Dues-collect-
ing stewards only service you.
When the receipt was delivered, Hammond requested Stovac to sign a checkoff
authorization, but Stovac, failing to heed Hammond's warning that dues delin-
quency would result under the Union's constitution in automatic suspension from
membership, refused to do so.
Under the Union's constitution, dues are payable to the financial secretary of
the local on or before the first day of the month for which they are due. With
regard to dues delinquency, the constitution provides :
Any member becoming in arrears in dues or assessments . . . within the
time required by a Local Union, which in no case shall be more than two
calendar months, unless officially exonerated from payment of the same by
the Local Union . . . shall automatically be suspended from membership
and can be reinstated only by paying a reinstatement fee and 'such other
penalties as may be imposed by the Local Union in which he is suspended.
Another section reads :
Local Unions may notify members of their delinquency. However, failure
of the Local Union to notify the member of delinquency shall not exonerate
such member from automatic suspension.
Stovac's original payment covered his dues for the month of October. That
was the last payment he made. During the months of November and December,
Stovac made no tender of the dues payable for those months, and no union
representative demanded payment or notified him of his delinquency.
On January 3, 1949, the Union, without first contacting Stovac, notified the
Company that Stovac was automatically suspended from membership according
to its constitution. Labor Relations Director Beckett summoned Stovac and
asked him whether it was true that he was delinquent in his dues. Stovac ad-
mitted that he was, adding that he had forgotten to pay. At Beckett's suggestion,
Stovac approached Little to inquire if there was any way of getting back into
good standing with the Union, and at that time also offered to pay his dues
arrears. But Little replied that there was Aothing he personally could do about
it. Stovac was discharged by the Company that day.
Seeking to regain his good standing in the Union and reinstatement to his job,
Stovac attended a meeting of the Union's executive committee a few days later.
FERRO STAMPING AND MANUFACTURING CO . 1501
The committee agreed to his reinstatement upon condition that he pay his dues
arrears and suffer a 3:1/_,-year deduction from his seniority. This deduction would
not have led to job insecurity, for Stovac even with his reduced seniority would
still have been one of the oldest employees in the plant. The condition proposed
by the committee was acceptable to Stovac, but it was not to the Company. The
Company refused to permit Stovac to return on the terms offered, taking the
position that seniority rights must be governed by the contract, and that it could
not become a party to union-inflicted disciplinary measures relating to member-
ship rights. Either, it stated, Stovac must be returned with full rights or not at
all. The Union remained obdurate, and Stovac remained without a job.
2. Contentions and conclusions
The issue here is whether the Company violated Sections 8 (a) (3) and 8 (a)
(1) by discharging Stovac, and the Union, Section 8 (b) (2) and 8 (b) (1) (A)
by causing his discharge. The defense, generally stated, is that Stovac's dis-
charge was authorized under the union-shop agreement and was permissible
under the statutory provisions because it was for nonpayment of dues. To sup-
port his position, the General Counsel relies in the complaints on three alter-
native theories: (1) That the discharge was illegal because the union-shop pro-
vision of the contract was illegal; (2) that Stovac was not actually in arrears in
the payment of his dues, because he had paid initiation fees in a discriminatory
amount, entitling him to a credit on his dues arrears; and (3) that even if he
were in arrears his discharge was not warranted under the particular provisions
of the union-shop clause here involved. The first two theories are found to be
without substance and are rejected, for reasons indicated in the marginal note.28
The third-the only one argued at length in the General Counsel's brief-is con-
sidered below.
If the union-shop clause of the contract is more restrictive than the applicable
statutory provisions found in Sections 8 (a) (3) and 8 (b) (1) (A) of the Act,
it rather than the statutory provisions must control determination of the validity
of Stovac's discharge. Under the contract, employees are required not only
to become union members, as Stovac did, but also to "remain members of the
Union in good standing" as a condition of continued employment. The quoted
phrase, however, is limited by definition. The contract provides that "em-
ployees shall be considered not to be in good standing only upon refusal to pay
certified Union membership dues."
For present purposes it is important to note that the contract speaks of "re-
fusal" to pay dues, rather than of "failure" to tender dues as does the applicable
statutory provision. It is principally about this departure that the controversy
2s Rejection of the first theory is consistent with the finding made in an earlier section
of this Report that the union-shop clause did not violate the requirements of law because
of its "22 days worked" provision
The grounds for rejection of the second theory are two: (1) It incorrectly presupposes
that the imposition of an initiation fee found violative of Section 8 (b) (5) gives rise to
a private claim in favor of the employee discriminated against that may be utilized as
an equitable offset against his independent obligations to the Union That is not so;
for it is not the purpose of the unfair labor sections of the Act either to create or
adjudicate private rights. Its purpose, rather, is to prevent and redress in the public
interest certain practices which adversely affect commerce and are inimical to the general
welfare. Cf. Phelps Dodge v. N. L R. B , 313 U. S. 177; (2) the record establishes that
Stovac never asserted an offset claim , the first intimation of which appears in the
complaint filed more than a year after the discharge . I think it a minimal requirement for
one who would assert an offset right that he make his claim known and not stand mute
while he knows action is being taken or contemplated on the unquestioned premise that
the dues claimed are actually owing. Further , it appears that Stovac 's nonpayment of
dues was not motivated in whole or in part by a belief that he was entitled to such an offset.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here centers. The General Counsel, while agreeing that Stovac did not in fact
pay his dues for 2 months preceding his discharge, insists that he did not "re-
fuse" to pay. He claims Stovac's was merely a passive failure of omission or
neglect. This he would distinguish from a "wilful failure" or "refusal." To
support his position, the General Counsel points to the fact that no demand was
ever made upon Stovac for payment before notice was given the Company of
Stovac's automatic suspension, and that Stovac immediately upon learning of
this notice offered to pay the amount for which he was in arrears. For these rea-
sons, the General Counsel concludes, Stovac-regardless of the Union's constitu-
tion-did not come within a strict construction of the governing contractual defi-
nition of an employee not in good standing, which alone can be relied upon to
justify his discharge. With this position both Respondents take issue. All the
contract was meant to do and all it does, they say, is set out in substance the per-
missible outer limits of the provisos to Section 8 (a) (3) for the making and en-
forcement of compulsory membership agreements. "Refusal" as used in the con-
tract, they say, was intended and should be construed as meaning no more than
"failure" as used in the statute, and if under the Union's constitution his auto-
matic suspension was warranted for nontender of dues-and clearly it was-
that enough was sufficient to justify his discharge.
Although not free from doubt, I find myself unpersuaded by the General Coun-
sel's contention. The word "refuse" like other words is not under all circum-
stances confined to a single exact meaning, but is elastic in character and may
be given somewhat varied significance under different circumstances, depending
on the context in which it appears and the subject to which it relates. Although
usually defined as synonymous with "reject" or "decline," at times it is also
properly used in place of "withhold." True, there can be no "refusal," unless
there is a prior demand, obligation or duty to perform, or condition to be met,
and unless there is also knowledge or notice of opportunity for fulfillment.
Mutual Life Insurance Co. v. Hill, 178 U. S. 347. These elements, however, need
not be express, but may be inferred from circumstances that are equivalent
thereto. Nor need the refusal necessarily take the form of deliberate rejection,
declination, or withholding, under an asserted claim of right or expressed un-
willingness to perform. As stated in Mackey v. United States, 290 F. 18, 21
(C. A. 6) : "To refuse does not necessarily imply a precedent demand deliber-
ately denied." And as stated by the court in Ev parte Yost, 55 F. Supp. 768,
772 (D. C. Cal.), " . . . refusal implies not only the positive act of rejecting a
thing, but the negative act of failing to do a thing which is tantamount to re-
jection." In Taylor v. Mason, 22 (J. S. 325, 343, the Supreme Court held that
where a condition to be performed depends on the will of him who must perform
it, and he fails to act, his failure must in law be regarded as the equivalent of
a refusal. As a general rule, although not without exception, the term "refusal"
has been given a judicial construction synonymous with "failure," where, al-
though there was no positive demand and express rejection, there was a failure
to perform a legal obligation or duty or to meet a contractual condition.2,
In the instant case the intent and meaning of "refusal to pay certified union
dues" is to be derived from the context in which it appears. The provision that
employees shall be considered not to be in good standing only upon such refusal
is to be read not alone, but in relationship to the contractual requirement which
precedes it and which it explains and modifies, that employees must as a con-
dition of employment "remain members of the union in good standing." When
29 See Taylor v . Mason, supra ; Mackey v. United States , supra ; Em parts Yost, supra;
Sherman v. Credit Finance Corp ., 78 Colo . 330; Hicks v. Conn ., 270 Ky . 344; Elfman v.
G laser, 313 Mass. 370 ; Fidelity Union Trust Co. v. Laise, 127 N. J. Eq . 287; Woodruff v.
Barrington, 199 Okla. 125; F. R. Patch Co . v. I. A. M., 77 Vt. 294.
FERRO STAMPING AND MANUFACTURING CO . 1503
the qualifying definition and the clause it defines are read together and meaning
is given to each, it appears plain that what the contracting parties intended,
although they may have expressed it inartistically, was that the Union'8 require-
ments-none other are possible-for good standing membership were to apply,
but that for the purposes of enforcement of the union-shop provisions they were
to apply only to the extent they imposed upon members the obligation to pay
dues in accordance with the Union's own regulations for the maintenance of good
standing status. There is no claim in this case that Stovac interpreted the con-
tract differently, or that he was misled by reliance upon some other construction.
Under the Union's constitution dues were payable each month without demand,
and there was no requirement upon the Union to notify members of delinquency.
Stovac was on notice of this, and he also knew that it was a condition of his
good membership status in the Union, and concomitantly a condition of his
employment, that he maintain his periodic dues payments so as not to fall into
a status of automatic suspension. Yet, though it lay within his right and power
to pay, he did not do so. There is no evidence that his failure was the result of
unavoidable necessity ; indeed no direct testimony was offered to excuse his non-
payment, and all that appears in the record on that point is that he told Beckett
after he was suspended that he had forgotten to pay. In view of Stovac's past
position as an official of the predecessor union and his prior experience with the
Union, I am unable to believe that Stovac's unreasonable delay for a period of
over 2 months was merely an omission of oversight or neglect. I believe rather,
and I find, that it was the result of a wilful failure. For these reasons, and on
the basis of the applicable principles adverted to above, I conclude that Stovac's
nonpayment of his dues prior to his automatic suspension was in fact and in law
tantamount to a "refusal to pay."
The next question is whether Stovac's refusal was cured by his offer, made
after his automatic suspension but before his discharge, to pay the Union the
dues for which he was in arrears. On the record of this case, I am unable to
agree with the General Counsel that the contract must be construed as requiring
the Company to give a suspended member a "last chance" to pay his arrears
before subjecting him to the penalty of discharge.30 The contract makes it
a° Because the contract speaks of a "refusal to pay certified union dues," the General
Counsel would construe the contract to require as conditions precedent to a valid discharge,
certification by the Union to the Company of the delinquency, followed by opportunity
given by the Company to the employee to pay his arrears, and positive rejection of that
opportunity by the employee. He ventures the opinion that the Company must have
insisted upon prior certification to it of dues delinquencies in order that the Company
might itself make a request upon the employee for payment and have it declined before
taking discharge action, thereby giving the Company an opportunity fully to satisfy
itself that the discharge was not being sought upon a ground other than nonpayment of
dues and that it was not involving itself in the risk of an unfair labor practice charge.
This theory might have had substance, had the record supported a finding that the phrase
"certified union dues " meant what the General Counsel says . But the record does not.
Because the precise meaning of that phrase is not readily apparent from the contract,
parol evidence was admitted to explain its significance The testimony adduced makes
it clear that the "last chance" consideration attiibuted to the contracting parties was
neither contemplated nor discussed at the time the contract was negotiated and drawn.
According to Beckett's testimony which stands unrefuted on the record, the phrase
in question did not contemplate a formal certification by the Union to the Company of
;dues delinquencies , but was merely designed to make clear that the dues, for nonpayment
of which an employee might be discharged, were regular dues authorized by the Union's
constitution , and did not cover, for example, such items as assessments . The entire clause
of which that phrase is a part was discussed in the negotiations , according to Beckett, as
one which would substantially embody in the contract the statutory restrictions upon a
union -shop contract . Although the undenied testimony on the meaning of "certified union
dues" may leave something to be desired , I am unable to say that it is so implausible
on its face as to require rejection.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that good standing is lost upon refusal to pay. It has been found above
that Stovac's "refusal" preceded his automatic suspension, and under the
Union's constitution mere tender or payment of arrears after automatic sus-
pension does not itself operate to reinstate a suspended member to the status
of one in good standing It follows therefrom that Stovac, notwithstanding
his belated offer of payment, was not at the time of his discharge "a member
of the Union in good standing," so that, under the express provisions of the con-
tract, his discharge for that reason was warranted. Nor, in my opinion, is
Stovac aided by the statutory provisions which forbid discharges under a
valid union-shop agi eement where membership is "denied as terminated for
reasons other than the failure of the employee to tender . . . periodic dues."
The Board has not yet decided whether accrued delinquency resulting from
a "failure . . to tender" within the time required may be corrected by a
subsequent tender of arrears, made after a discharge demand but before the
actual discharge Howevei, as I construe that term in its statutory context
and in light of the congressional policy to permit compulsory membership agree-
ments as a protection to unions against "free rider,," a "failure" occurs when
membership rights are adversely affected under the union's own regulations
by reason of detault in dues payments, and the "failure" is not automatically
canceled out by a subsequent tender or payment, unless acquiesced in by the
union or unless the union's own regulations provide for restitution of mem-
bership rights upon correction of the default 31
That leads directly to another and related question, also not as yet definitely
answered by the Bo-iid i'lie General Counsel in his brief suggests that since
Stovac's membership was merely suspended at the time of his discharge, and was
not completely forfeited by expulsion, his discharge may not be justified under
the statute I ani unable to a:gi cc Under the governing contract, it is not neces-
sary that an employee be expelled from the Union before the union-shop sanctions
might be in s oked , it is enough that he has lost his status as a member in good
standing Since Stogy ac had been suspended for nonpayment of dues, he was not
ii member in, good standing at the time of his discharge, and his discharge was
clearly pennissihle under the terms of the contract. Nor, in my opinion, do the
terms of the contract transgress the allowable limits of the statute. True, in.
defining penuissible union-security agreements, the proviso to Section 8 (a) (3)
speaks of agreements requii ing as a condition of employment "membership" in
a labor organization, and the further proviso forbids an employer from justify-
ing discrimination for "non-membership" save on certain grounds. But the
quoted words must he read with the aid of the glossary provided by established
contractual practices in the field of labor relations and their accepted interpreta-
tions. Contracts requiring maintenance of membership in good standing have
long been coinnion The ",,losed shop" proviso of Section 8 (3) of the original
Act also spoke of agreements requiring "membership" in a labor organization
as a condition of employment. In considering that proviso, the Board and the
courts have uniformly assumed that the proviso permitted agreements for "mem-
bership in good stan,lir_g," and that a discharge thereunder was valid where a
member had lost his good standing, even though his full membership rights had
not been forfeited by expulsion ` In amending the Act, it must be presumed
31 In this case, the General Counsel has made no contrary contention on this point;
indeed lie has not raised the question at all. It is nevertheless involved and must be
disposed of
33 A good discussion on this subject and analysis of pertinent Board and, court decisions
is to be found in Section III (c) (1) of the Trial Exammei's Intermediate Report in
New York Shipbuilding Corporation, 89 NLRB 1446 Although in deciding that case the
Board found it unnecessary to pass on this particular point, the reasoning of the Trial
Examiner appears sound and is here adopted.
FERRO STAMPING AND MANUFACTURING CO. 1505
Congress was aware of the commonly accepted practice of requiring "membership
in good standing" rather than "membership" as a condition of employment, and of
the Board and court approval this had received. Yet there is no clear indication
in the legislative history that Congress frowned upon that approved practice,
or sought to change the rules concerning it, and there is some indication to
the contrary.33 In these circumstances, it is only reasonable to conclude that it
was not Congress' intent to invalidate contracts requiring "membership in good
standing" as a condition of employment, if discharges under such contracts were
restricted to situations where an employee had forfeited his good standing mem-
bership by nonpayment of dues.33
Finally, the General Counsel argues that the Union acted without authority
in requesting, and the Company illegally in effecting, Stovac's discharge, because,
as he asserts, the Union's constitution does not provide for automatic job removal
where a member has been suspended. To support this argument the General
Counsel relies upon certain provisions of Article 48 of the Union's constitution,
stating that in "ii plant in which union membership is a condition of employment
suspension [as distinguished from expulsion] from membership shall not require
removal from the job . . . [unless] required by a two-thirds vote of the body
voting suspension." The argument lacks validity. To begin with, the General
Counsel's reliance on provisions of Article 4S appears to be misplaced ; for that
article is confined to situations involving the trial of members for violations of
the Union's constitution, such as conduct unbecoming a member, and seems un-
related to the procedures governing suspension for nonpayment of dues, which
are controlled by an entirely different article. But even apart from that, the
argument does not rest on firm ground. Determination of the validity of Stovac's
discharge cannot in any event be made to turn on whether there was strict com-
pliance with the Union's own procedural regulations. That, standing alone, is
an internal union affair, of no concern to the Board. The legality of the Re-
spondent's conduct must be tested by the contractual and statutory provisions
involved, and the Union's constitution may be looked to only to the extent made
necessary by the contract. By that test, it has been found that Stovac was not
a member of the Union in good standing because of his refusal to pay dues, and
his discharge was justified by the contract.
For reasons stated above, it is found that the allegations of the complaints
with regard to Stovac's discharge have not been sustained, and their dismissal
will be recommended."
93 The applicable language in the amended Act is derived from the Senate bill In
the Senate committee report and the debates discussing the compulsory membeiship
proviso, reference appears always to be made to employees who have been "expelled" or
"fired" from unions or with respect to whom membership had been "denied " or "termi-
nated " (Senate Report No 105, 80th Cong , pp. 3, 7, 20, 21 , 93 Cong. Rec. 3953, 4262,
4318, 4400.) However, it does not appear that in using these terms, there was an intent
to differentiate between "expulsion" situations and "suspension" situations. On the
other band, Section 8 (d) (4) of H R 3020, as passed by the House, specifically
authorized agreements requiring employers to discharges employees who had been
"suspended or expelled" from the union for nonpayment of dues. (See, 'House Repo,'t
No. 245, 80th Cong , p 34 ) Although the Senate version was adopted, the House
Conference Repoit implies that the Senate veision carried out the intent of the House
with regard to substantive provisions . ( H Conf. It. No . 510 on H. R. 3020, p. 41.)
Cf. Public Service of Colorado, 89 NLRB 418.
If the Union's action in bringing about Stovac's discharge seems to have been unduly
harsh, so may the result here reached ; but in this case as in others it must be remembered
that legal and not moral values must prevail to control judgment.
943732-51-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. The discharge of Dale Whitehead
1. The facts
Dale Whitehead, employed by the Company since May 1947, was one of the
employees who on August 4, 1948, when the Union was requiring $8 as a con-
dition of admission, tendered to John Eickhorn, his steward, $2, in initiation
fees and $1.50 dues, and was denied admission on these terms. About a week
later, however, on August 13, 1948, to be exact, Whitehead did join the Union, by
paying a $6.50 initiation fee and $1.50 dues to Steward Henry Tracy. At that
time, Tracy asked Whitehead to sign a checkoff authorization, but Whitehead
declined. Whitehead paid his dues in September and October to his shop steward,
Eickhorn. When Whitehead paid his October dues-according to his testimony,
disputed in this respect-he secured from Eickhorn a checkoff card, signed it,
and returned it to Eickhorn. Thereafter, Whitehead made no further attempt to
pay his monthly dues.
During the next 2 months no deductions were made by the Company from White-
head's pay. Although aware of this, Whitehead, as appears from his testimony,
was not concerned, because he knew-and the record substantiates him in this-
that checkoff authorizations were not always delivered to the Company promptly.
He simply assumed that in due course the checkoff card would be delivered and
the deductions made. Whitehead did become concerned, however, after learning
of Stovac's discharge. On January 11, 1949, he called at the Company's per-
sonnel office to inquire why no deductions had been made from his pay. He was
told that the Company had never received from the Union a checkoff authoriza-
tion signed by him. Whitehead went to see Eickhorn, but Eickhorn took the
position that he had never delivered a checkoff authorization to him. During
lunch hour that day, Whitehead called on Financial Secretary Hammond, and
told him what had happened. Hammond, as appears from his testimony, had
been completely unaware up to that time that Whitehead's dues for November
and December had not been paid, although it was his usual practice to check
his records for delinquencies about the first of the month, a practice which the
record shows he followed in the case of Stovac. At the suggestion of Hammond,
Whitehead signed and delivered to Hammond a new checkoff card. At the same
time, Whitehead offered to pay dues for the months of November and December,
but Hammond would not accept his money. Hammond assured Whitehead, how-
ever, that he would do everything he could to straighten out the matter. Ham-
mond then left Whitehead to discuss Whitehead's case with President Yorwarth
and Chief Steward Little.
By the conclusion of the lunch hour, Hammond's attitude had changed. Al-
though a company official indicated the Company's willingness to accept the new
checkoff card and to deduct from Whitehead's next weekly wages the amount
of accrued back dues, Hammond refused to turn in the card. Thereafter, the
Union moved with dispatch. That same afternoon union representatives pre-
sented to Labor Relations Director Beckett a notice asking the Company to "take
action" against Whitehead. In response to Beckett's inquiry as to precisely what
was meant, the union representatives stated that they wanted the union-shop
article of the contract enforced according to its terms. Thereupon, Beckett had
his stenographer type out a formal notice, which was signed by Financial Secre-
tary Hammond and President Yorwarth of the Union and delivered to Beckett.
The notice, dated January 11, 1949, read :
MP-118, Dale Whitehead is delinquent in his union dues for November
and December 1948. Therefore he is not in good standing by refusing to
pay certified union dues.
FERRO STAMPING AND MANUFACTURING CO. 1507
It is requested that the Company immediately enforce Art. 1, Section 6,
Paragraph 2 of our Contract with the Company.
Later that same afternoon , Beckett summoned Whitehead into his office , exhib-
ited the letter signed by the union officials, and discharged him.
2. Conclusions
With regard to the discharge of Whitehead, the complaints allege a violation
of Section 8 (a) (3) and 8 (a) (1) by the Company, and 8 (b) (2) and 8 (b) (1)
(A) by the Union. The complaints proceed on the same theories as in Stovac's
case. In Whitehead's case, however, emphasis is placed on the checkoff authori-
zation which he testified he signed in October, and which it is claimed, operated
as a continuing tender of dues. For reasons indicated in Stovac's case, the
General Counsel's first two theories-that the discharge was made under an
illegal union-security clause and that Whitehead was entitled to an offset by
reason of an overpayment in initiation fees-are rejected ." The third theory of
the complaints remains to be considered.
Unlike Stovac's, determination of Whitehead's case, at least against the Union,
turns basically upon a resolution of factual conflict in testimony. With one
exception, the facts set out above are based upon uncontradicted testimony. And
though many of the facts have been drawn from Whitehead's testimony, his
account-with that single exception-is substantially corroborated at all points
by testimony of company and union witnesses. The exception concerns White-
head's statement that he signed and delivered to Eickhorn in October a checkoff
authorization card for transmittal to the Company. This Eickhorn flatly denied.
Eickhorn testified that his only discussion with Whitehead occurred prior to
July 29, 1948, at the time the initiation fee was $2 plus $150 dues. According
to Eickhorn, he had asked Whitehead about joining, and Whitehead had told
him to fill out a card and he would pay the money the next day. He could not
remember, he testified, whether Whitehead actually signed a checkoff the next
day, "but he didn't pay what he was supposed to, so I just done away with the
cards." 34 Subsequently, Eickhorn altered his testimony. Although he had pre-
viously expressed inability to recall whether or not Whitehead had signed a
checkoff at that time, he now stated positively that Whitehead had never signed
a card on this occasion or any other.
Whitehead from his demeanor on the witness stand impressed me as a reliable
and trustworthy witness. His account of what occurred, plausible on its face,
supported by convincing detail, and in all respects but the one corroborated by
other evidence, remained unshaken in any material detail by vigorous cross-
examination. On the other hand, Eickhorn's account, as already noted, was
partially contradictory, and in certain other respects his testimony was not such
as to invite credence 33 Although I am unable to agree with the General Counsel
that the record of this case supports an inference that union animus toward
w There is an additional reason for rejecting the offset theory in Whitehead ' s case.
No finding of a violation of 8 (b ) ( 5) has been made on the basis of the initiation fees
paid by him before the union-shop agreement became effective.
37 At another point, however , Whitehead testified , inconsistently , that prior to July 29
Whitehead had never indicated that he might join the Union.
as Thus, for example, h^ the face of overwhelming testimony to the contrary by witnesses
for the General Counsel , the Company , and the Union alike, Eickhorn denied any recollec-
tion of unusual incidents in the plant between the posting of the Union's notice with
regard to dues and initiation fees on July 29, 1948, and the second notice on August 6,
1948. He also denied that any employees offered to join the Union or to make money
tenders to him personally or to other stewards between those dates.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitehead prompted the deliberate destruction of Whitehead's checkoff card, I
am impressed by the fact, established by uncontradicted evidence, that the han-
ding by the Union of its records was often careless . Hammond's own testimony
shows that the checkoff card of another employee, Dorothy McDonald, secured
in September, was negligently mislaid by union officials and was not submitted
to the Company until Januai y. For all the reasons indicated, I credit White-
head's testimony, reject Eickhorn's denial, and find that Whitehead in October
1945 executed and delivered to the Union for transmittal to the Company a
checkoff authorization card.
At the hearing it was conceded by Financial Secretary Hammond, and It is
found, that once an employee signed a checkoff authorization it constituted
a tender of dues until such time as the authorization was revoked ; that it
thereupon became the Union's responsibility to collect the dues from the Com-
pany ; and that even though the Union failed to submit the authorization to the
Company and collect from it, the Union would continue to consider the employee
as one who remained a member of the Union in good standing within the intent
of the Union's constitution, and not as one who had "refused" or "failed" to pay
union dues It follows, and it is found, that the Union was not justified in de-
manding with regard to Whitehead enforcement of the penalty provisions of the
contract for nonpayment of dues.
The Union argues that because it engaged in no coercive measures against the
Company to compel the discharge of Whitehead, it cannot be found to have
" coerced or attempted to coerce" the Company to discriminate against Whitehead.
For the reasons stated in the discussion of the similar argument advanced by
the Union in the Miranda case, the Union's position in that regard is found
untenable. It is concluded that the Union, on January 11, 1949, caused and
attempted to cause the Company to discriminate against Dale Whitehead with
respect to whom membership in the Union had been denied or terminated on
some ground other than his failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining membership-
It is further concluded that by causing the Company to discharge Whitehead,
the Union restrained and coerced employees in the exercise of rights guaranteed
by Section 7, and thereby also violated Section 8 (b) (1) (A) of the Act.
There remains only the issue of the Company's liability under Section 8 (a)
(3) and Section 8 (a) (1). Resolution of that issue depends on whether the
Company may be said on the facts of this case to have had reasonable grounds
for believing that Whitehead was not in fact delinquent in the payment of dues.
The record shows that the Company, after investigating the facts, was confronted
with two conflicting versions-Whitehead's insistence that he had signed a
checkoff and the Union's insistence that he had neither signed a checkoff prior
to his suspension nor paid his dues The fact that the Union had never submitted
to the Company a checkoff for Whitehead coupled with Whitehead' s admission
that he had not paid the dues in cash gave apparent support to the Union's
position. And in the absence of other information on that point which would
enable the Company to form a reasonable judgment, it was not for the Company
to attempt to resolve a difficult question of credibility. In these circumstances„
I am unable to conclude that the Company's action in complying with the Union's.
demand for the enforcement against Whitehead of the union-security provision
of its contract was unjustified under proviso (B) of Section 8 (a) (3). Accord-
ingly, I find that the allegations of the complaint against the Company relating
to the discharge of Whitehead have not been sustained, and shall recommend-
their dismissal.
FERRO STAMPING AND MANUFACTURING CO . 1509
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the activities of the Respondent Company described in Section
I above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company has discriminated in regard to the hire and
tenure of employment of Mary Miranda, it will be recommended that it offer her
immediate and full reinstatement to her former or substantially equivalent
position 39 without prejudice to her seniority and other rights and privileges.
Having further found that the Union in violation of Section 8 (b) (2) of the
Act caused the Company to discharge Mary Miranda and Dale Whitehead, it will
he recommended that the Union notify the Company, in writing, that it with-
draws its objections to their employment and that it requests the Company to
offer them immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges.
Having found that both Company and the Union are responsible for the dis-
crimination suffered by Mary Miranda, and that the Union alone is responsible
for the discrimination suffered by Dale Whitehead, it will be ordered that the
Company and the Union jointly and severally make Mary Miranda whole, and
that the Union alone make Dale Whitehead whole for any loss of pay they may
have suffered by reason of the discrimination against them40 Consistent with
the policy of the Board enunciated in F. W. Woolworth Company, 90 NLRB 289,
it will be recommended that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from the dis-
criminatory action to-in the case of the Company-the date of a proper offer of
reinstatement, and to-in the case of the Union-a proper withdrawal of objec-
tions to employment. The quarterly periods, hereinafter called "quarters,"
shall begin with the first day of January, April, July, and October. Loss of pay
shall be determined by deducting from a sum equal to that which these employees
normally would have earned for each quarter or portion thereof, their net
earnings (Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N. L. R. B, 311 U. S 7), if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay lia-
bility for any other quarter. It is also recommended that the Respondent
Company be ordered to make available to the Board upon request payroll and
other records to facilitate the checking of the amount of back pay due.
30 See The Chase National Bank o f the City of New York, an Juan, Puerto Rico Branch,
65 NLRB 827.
40 The Respondents contend that Mary Miranda made no effort to mitigate damages
or to keep herself employed other than as a housewife and has wilfully incurred such
loss of earnings as she may have suffered. The issue raised by that contention was
litigated at the hearing. The proof shows that on November 22, 1948, the date of
her discharge, Miranda registered with the Employment Service Office of the Michigan
Unemployment Compensation Commission and that she at no time thereafter rejected
employment of any kind or gave up desirable new employment. The Respondents' conten-
tion is therefore overruled. See Harvest Queen Mill d Elevator Company, 90 NLRB 320.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Having found that the Union, in violation of Section 8 (b) (5) of the Act
required the employees named in Appendix A, hereto attached, to pay a dis-
criminatory initiation fee, it will be recommended that the Union reimburse them
for the discriminatory overcharge, by repaying each of them the sum of $10.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, Local 753, C. I. 0., is a labor organization within the
meaning of Section 2 (5) of the Act
2. By discriminating in regard to the hire and tenure of employment of Mary
Miranda, thereby encouraging membership in the Respondent Union, the Re-.
spondent Company, Ferro Stamping and Manufacturing Company, has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. By causing and attempting to cause the Respondent Company to discriminate
against Mary Miranda in violation of Section 8 (a) (3) of the Act, and to dis-
criminate against Mary Miranda and Dale Whitehead with respect to whom
membership in the Respondent Union had been denied or terminated upon 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,
the Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
5. By requiring employees covered by an agreement authorized by Section &
(a) (3) of the Act to pay discriminatory initiation fees as a condition to becom-
ing members of the Respondent Union, the Respondent Union has engaged in
unfair labor practices within the meaning of Section 8 (b) (5) of the Act
6. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section S (b) (1) (A) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent Company has not engaged in unfair labor practices as
alleged in the complaint against it, by entering into a contract containing an
illegal union-security clause or by discriminating with regard to the hire and
tenure of employment of Thomas Stovac and Dale Whitehead.
9. The Respondent Union has not engaged in unfair labor practices as alleged
in the complaint against it by causing the Respondent Company to enter into an
agreement containing an illegal union-shop clause; by causing the Company to
discharge Thomas Stovac; by requiring employees to pay excessive and discrimi-
natory initiation fees prior to August 31, 1948, and excessive initiation fees there-
after, as a condition of membership ; or by threats to cause the discharge of
employees for nonmembership in the Union or for failure to sign checkoff authori-
zations.
[Recommended Order omitted from publication in this volume.]