Foley's Mill and Cabinet Works

National Labor Relations Board - Board Decisions

Jul 30, 1951

95 N.L.R.B. 743 (N.L.R.B. 1951)

FOLEY'S MILL AND CABINET WORKS 743
work throughout the plant. Although their duties include mainte-
nance of the Employer's buildings, it appears that their primary
function is to maintain all types of machinery, including boilers,
refrigeration, ventilation, and air-conditioning equipment. In the
course of servicing the equipment, they work with the engineers, learn-
ing the "skills of the trade" so that they may, after a minimum period
of 2 years, qualify for the city license and serve as engineers.
As the mechanical maintenance men perform the skilled and spe-
cialized functions which lead to the position of licensed engineer, and
as their interests are substantially linked with those of the engineers,
we shall include them in the voting group 10
Accordingly, we shall direct an election among all engineers and
mechanical maintenance men at the Employer's Detroit, Michigan,
plant, excluding all supervisors 11 as defined in the Act. However,
we shall make no final determination at this time, but shall first
ascertain the desires of these employees as expressed in the election
hereinafter directed. If a majority votes for the Petitioner, they
will be taken to have indicated their desire to constitute a separate
appropriate bargaining unit.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
10 John Morrell & Go., Inc., supra . Cf. The Wooster Rubber Company , 77 NLRB 1044.
11 The status of the chief engineer appears questionable from the record . For this reason
we shall make no determination with respect to inclusion of the chief engineer in the voting
group at this time. If he possesses supervisory powers within the meaning of Section 2 (11)
of the Act, he is to be excluded therefrom.
FOLEY'S MILL. AND CABINET WORKS and LUMBER & SAWMILL WORKERS
LOCAL UNyoz+,,No. 2409. Case No. 19-CA-335. July 30, 1951
Decision and Order
On December 26, 1950, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain unfair labor practices, and
recommending that the complaint be dismissed, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter the
Union filed exceptions to the Intermediate Report and a supporting
brief. The Respondent filed a brief in support of the Intermediate
Report.
95 NLRB No. 101.
744 DECISIONS --OF NATIONAL , LABOR -RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner 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 entire record in
the ease, and,hereby adopts the. findings, conclusions,' and recommen-
dations of the Trial Examiner with the following additions and
modifications :
We agree with the Trial Examiner's conclusion that the prepon-
derance of all the evidence does not support a finding, il, at the Re-
spondent's conduct constituted an unfair labor practice. ,within the
meaning of the Act. In reaching this conclusion we regard the fol-
-lowing facts as significant :
The Respondent and the Union entered into an authorized union-
shop agreement. Upon request by the Union made pursuant to this
agreement,. Respondent discharged one employee who failed to become
a union member. Shortly thereafter the 'Union, requested ;additional
discharges under, the, agreement. • The Respondent. Spoketo each of
.the delinquent employees :listed in this second demand by the Union
and offered them salary advances so that. they could.,pay the required
initiation fees and dues, and made one such advance in salary. Each
o delinquent -employee promised to settle with the Union :immediately.
The Union informed the employees that they would be required to pay
dues for periods during which they were not members. The Em-
ployees 'protested., It was not until after: the so-called ' .'%ack dues"
dispute was brought to the Respondent's' attention by the shop stew-
ard. that the Respondent,. questioned the propriety. of the Union's
demand for the, discharge of the, delinquent employees and thereafter
refused to take further steps to meet the Union's demands for their
discharge.
The evidence fails to show that the Respondent's alleged failure to
abide by the terms of the contract was aimed in any way at affecting
the employees' rights - guaranteed by the Act, or at discrediting or
undermining the prestige of the contracting Union. On the contrary,
the Respondent's cooperative conduct up to the time the "back dues"'
issue was brought to its attention emphasizes the absence of such a
purpose. Under the second proviso of Section 8 (a). (3.).. of the Act,
the Respondent could not comply. with the Union's request and retain
the benefit of the immunity provided in the, first proviso of that sea
Lion, if it had reason to believe that membership was not available to
,the employees whose discharge was requested on the same terms and
.conditions generally applicable. to other members 1 Whether the
I Cf. The Electric Auto -Lite Company, 92 NLRB 1073 , where the Board held that the.
Employer violated the kct by discharging an employee when the Employer had "reasonable
grounds for believing" that the employee 's union membership was terminated , as it in fact
had been, for reasons other than his failure to tender the periodic dues' and initiation lees
uniformly required as a condition of acquiring or retaining, membership.
FOLEY'S MILL AND CABINET WORKS 745.
Respondent's position in the "back dues" question was the correct one
is not in issue here. Suffice.it to say 'that the Respondent's alleged
contractual breach was consistent with its statutory, obligation under"
this section in order to avoid the commission of unfair labor prac-
tices, and, so far as the record shows, clearly not in furtherance of any
design to -interfere, with-or rid-itself of, the chosen representative of
its employees.?
On the basis of the foregoing, and upon the entire record, we find,
that the Respondent did not- engage in any unfair labor practices..
Accordingly, we shall dismiss the complaint in its entirety.
Order
IT IS HEREBY ORDERED, pursuant to Section 10 (c) of the National'.
Labor Relations Act, as amended, that the; complaint issued herein.
-against Foley's Mill and Cabinet :Works, Helena, Montana, be, and. it
hereby is, dismissed.
Intermediate Report.
STATEMENT or THE CASE
Upon charges duly filed by Lumber & Sawmill Workers Local Union No. 2409,.
herein called the Union, the General Counsel of the National Labor Relations-
Board, herein respectively' called General Counsel:'and the Board, by the Re-
gional Director for the Nineteenth Region (Seattle, Washington), issued. a. com-
plaint dated November 1, 1950, against Foley Is Mill and Cabinet Works, Helena,
Montana, herein called the Respondent, alleging that the Respondent had en=-
gaged in and was engaging in unfair labor practices .affecting commerce within.
the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61' Stat. 136, herein called the Act. Copies-
of the charges and the complaint,, together with. notice of hearing, were duly-
served upon the Respondent and the Union.
With respect to the unfair labor practices the complaint alleges; in substance
that the Respondent has permitted employees to remain in its employ more than-
30 days without requiring that such employees obtain membership in the Union,.
as required by a valid collective bargaining agreement between the Respond-
ent and the Union, and that by such conduct the Respondent has interfered;
with, restrained, and coerced its employees in the exercise of rights guarani
teed in Section 7 of the Act
Thereafter the Respondent filed its answer , dated November 10, 1950, in which
it denied the commission of the alleged unfair labor practices and set out certain:
affirmative defenses.
Pursuant to notice, .a bearing was held in Helena, Montana, on November 16,.
1950, before the undersigned Trial Examiner, duly designated by the Chief'
Trial Examiner. The General Counsel and the Respondent were represented'
by counsel, the Union by an official. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
At the opening of the hearing a motion, made by General Counsel, was granted
to strike certain portions of the Respondent's, answer. During the hearing
2 Cf. Crown Zellerbach Corporation , Stilcoos Division, 95 NLRB 753.
746' DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
two petitions to quash subpenas, issued on behalf of the Respondent, were
granted. At the conclusion of the hearing ruling was reserved upon a motion
by the Respondent to dismiss the complaint. Said motion is disposed of by
the findings, conclusions, and recommendations set out below.
Counsel waived the opportunity to argue orally before the Trial Examiner.
Each counsel thereafter filed a brief. Following the hearing the Respondent
-filed with the Trial Examiner a motion to correct the official. transcript in
certain minor respects, said motion indicating upon its face service upon the
-other parties. No objections having been received, the said motion is granted,
snd is hereby made a part of the official record.
Upon the entire record in the case, and from'his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
J ., I.' THE BUSINESS OF THE RESPONDENT
Foley's Mill and Cabinet Works, Helena, Montana, is a Montana corporation,
engaged in the manufacture of millwork and lumber at its operations in Helena,
Montana.
In the course of its business operations the Respondent causes 50 percent of
its finished products valued annually at more than $500,000 to be sold, delivered,
and transported in interstate commerce through States of the United States
other than the State of Montana.
The Respondent.concedes the Board's jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Lumber & Sawmill Workers Local Union No. 2409 is a labor organization
admitting to membership employees of the Respondent.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The "sues
Ample evidence, undisputed, supports the main factual allegation of the corn-
'plaint: that the Respondent did not discharge, as required by a legal union-
shop contract, certain employees who had failed to become members of the Union.
If such refusal, per se, constitutes a violation of the Act, the consequent legal
conclusion must follow and an appropriate remedy recommended. The Trial
Examiner is not aware, however, that in any Board or court decision the initial
premise has been established as a principle . On the contrary, the Board said
in' United Packinghouse Workers of America, et al. (Wilson d Co., Inc.) 89
NLRB. 310:
... Congress specifically rejected the proposal that contract violations be
made unfair labor practices . . . The Senate amendment to the Wagner
Act contained.a provision making the violation of the terms of a collective
bargaining agreement an unfair labor practice. The conference agreement
omitted this provision for the reason that "once parties have made a col-
lective bargaining contract the enforcement of the contract should be left
to the usual processes of the law and not to the National Labor Relations
Board ...
It is true that the Board' has had occasion to find, in special circumstances,'
that an employer's refusal to observe the terms of an existing agreement, par=
ticularly closed-shop provisions, constituted both interference and a refusal to
FOLEY'S MILL AND CABINET WORKS 747
bargain. (Carroll's Transfer Company, 56 NLRB 940.) In that case the Board
appraised the respondents', conduct with respect to the closed-shop provisions*in
the light of other contemporary conduct on their part, which the Board con-
cluded "manifested their complete lack of good faith in their dealings with
the Union.... The Board further said : "By signing a trade agreement an
employer does not purchase immunity from the requirements of good faith and
honest negotiation which are basic to Section 8 (5) of the Act." The Trial
Examiner considers that the Board's reasoning in the last-cited case should be
his guide in resolving the problem presented herein.
In-the instant case the real question appears to be: Did.the Respondent, by
refusing to discharge employees, interfere with rights guaranteed, by Section T
of the Act?' General Counsel would have the question answered in the affirma-
tive, and in part argues :
The majority of these employees have evidenced their desire that member-
ship in the Union be made a condition of employment, and that the right
to refrain from such activity should not exist at this operation. A small
dissident minority disagrees. This Respondent thereupon takes active steps
to aid this minority, thus thwarting the expressed will of the majority of its
employees.
B. Relevant facts and evidence
Since 1946 the Union has been the collective `bargaining representative of
the Respondent's production employees. Labor agreements between the two
parties have been made and renewed during that period. The record in this
case reveals no history of unfair labor practices on the part of the Employer,
either as to recognizing or as to bargaining with the Union. The latest contract,
presently in effect, was signed in October 1949. It contains a "union security"
clause which, in substance, provides that the Employer shall "release from its
employ any person who fails to become a member" of the Union after 30 days
employment and/or fails to "maintain membership in the Union by tendering
the initiation fee and periodic dues uniformly required as a condition of acquir-
ing and/or retaining membership." Negotiations leading to the "union security"
provisions were authorized by a majority vote of the employees in a bargaining
unit. The Regional Director certified the results in June 1948, in Case No.
19-UA-426. Among.its various defenses, argued in its brief, the Respondent
concedes that it "does not wish to question the legality" of the relevant clause.
It is found, then, that the "union security" clause of the contract in question is
in conformance with the relevant provision of Section 8 (a) (3) of the Act'
'Section 7 reads: "Employees shall have the right to self- organization , to form, join,
or assist labor organizations, to bargain collectively through representatives of their own
choosing , and to engage In.other concerted activities for the purpose of collective bargain-
ing, or other mutual aid or protection, and shall also have the right to refrain from any or
all of such activities 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) (8)."
2 The provision reads : "Provided, That nothing in this Act, or in any other statute of
the United States, shall preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any action defined in Section 8 (a)
of this Act as an unfair labor practice) to require as a condition of employment member-
ship therein on or after the thirtieth day following the beginning of such employment or
the'effective date of such agreement, whichever is the later, (i) if such labor organization
is the representative of the employees as provided in Section 9 (a), in the appropriate
collective bargaining unit covered by such agreement when made; and (ii) if, following the
most recent election held as provided in Section 9 (e) the Board shall have certified that
at least a majority of the employees eligible to vote in such election have voted to authorize
such . labor organization to make such an agreement. .. .
748 DECISIONS". OF NATIONAL LABOR ' RELATIONS BOARD
On May 3, 1950, the Union first invoked, by a demand in writing as the-same
.contract clause required, the union-security provision of the agreement. -The
demand referred to the governing article therein and said :
You have now in your emply (sic) three employes (sic) who have been
in your employ considerably longer than this period [30 days] without
joining the Union.. Therefore we are asking you to dismiss these employees
"`. at office. The. following are the employees to whom we refer :
Ray Nieman
James Eyestad'
Lyle Benson
Although the letter of May 3 was the first formal- demand made upon the
employer; calling for performance of the contract provision; management. had
previously been informed of the identity of certain delinquent employees and
of the Union's intention to invoke the contract. In February, Fred McCoskery,
-chief of the shop stewards, gave Mill Superintendent John Stanich a list of
employees who had not joined and asked him, .according to blcCoskery' s:;undis-.
muted testimony, "to contact these men and inform them they must become
members in good standing with the union." Whatever action, if any, Stanich
.took in response to the oral request is not revealed by the record and was not
• • :made known to McCoskery. -
In the latter part of March McCoskery went to the head of the Company,
"Michael F. Foley, and in the presence of Stanich, made a similar request as to
certain delinquent employees. On this occasion Foley instructed Stanich to
discharge one of the delinquents.4 What action either Foley or Stanich took,
if any, except as to the one individual, is not established in the record.
The Respondent did not comply with the demand of the Union in its May 3
.letter, nor was any reply made in writing. Instead, both Foley and Stanich
iinterviewed the three employees named. According to Foley's credible testimony
on the point, he "asked them if the stuff put on this letter was correct, and they
said no . . . some of them was paying on their initiation fee, and some of them
-would pay the full initiation fee, if I remember right, within two days, because
they had a pay day coming up then." Stanich testified, without contradiction,
.that he "contacted" the men and "told them they should pay their dues or get
.squared up with the union if they were to stay in the employment." After talking
-with the three individuals Foley went to McCoskery, asked him "what the deal
-was," told him "the boys" had said they were paying or would pay, soon, and
:asked if that was "all right." According to Foley's undisputed testimony on the
-point, McCoskery replied only to the effect that "if that wasn't what they were
:going to do he wanted some help, wanted me to put some pressure on them; and
that was all he said as to that time." Foley also said that after his conversation
with the steward he "assumed that everything was taken care of then." In any
.event, McCoskery took no further action until May 29.
On the latter date McCoskery sent the following written demand to Foley :
Please releave (sic) from your employ, for reasons set forth in artical (sic)
Eleven (XI) of our current working agreement, the following employees: '
Dean Eyestead • James Eyestead
Ralph Talbot Ray Neiman
Lyle Benson
This becomes effective upon receipt of this notice.
Spelled "Eyestead," and "Eystad," also, in the record.
.
"A Mr. LaPler," according to McCoskery's testimony. Whether or not LaPler actually
was discharged is not established. -
•:1,: FOLEY'S MILL AND - CABINET WORKS 749 '
4 Foley received this letter on May 30, and, according to his credible testimony
.on the point, proceeded. to talk with four of the five individuals above named,
Talbot, the fifth, being "out on a drunk and didn't come back for about a month
.afterwards." Foley then went to McCoskery again, and reported that each of
the employees had said they either had paid in full or would pay. According to
Foley's. testimony, corroborated in part by. McCoskery, the chief steward then
said, that the `-`chief argument" didn't seem to be on initiation fees but on "retro-
active dues" and explained that the Union believed the delinquent employees
should pay dues from the end of the 30-day period. Foley challenged McCoskery's
interpretation of the Union's right to such dues, pointing out that he, himself, had
been in the "labor movement" for 22 years, and knew "the laws pretty well." " An
argument ensued, McCoskery.. claiming that.he, had a right to collect the back
dues.. The testimony of both Foley and McCoskery is confused as to the precise
status of the discussion at the -close of this meeting.'
On June 2, Foley wrote to McCoskery as follows, in part :
We wish to acknowledge receipt of your letter of May 29th in which you
demand the discharge of five members whose names appear below:
Dean Eystad Lyle Benson
James Eystad Ray Neiman
Ralph Talbot
I wish td lnform you that I refuse ' to' comply with your request-on the
grounds that it is one of the most assinine requests that I have ever been
asked to comply with.
I personally contacted the above-named employees some weeks ago and
they, informed me that they have already paid their initiation fees and one
month's dues, which your Local or International Local requires. This itself
eliminates our Companuy from being held liable under Chapter XI.
I have been, informed by yourself, as well as the boys whom- you insist
upon having discharged, that you demand retroactive dues from these five
employees , who do not, or had not at that time, belonged to your Union.
I am going to answer you again, as I did then. As Michael F. Foley, a
member for twenty-two years of Local Union #153, Carpenters & Joiners
of America, located at Helena, Montana, I say you can not assess non-
members retroactive dues. In fact, I would be very willing to challenge
6 Foley said that he was a member of, at, the time of the hearing, had been since 1928,
and had held offices in, Local 1,53, United Brotherhood of Carpenters and Joiners of
America, with which the-Union'An this case is also affiliated.
Foley testified that at this meeting McCloskery told him that he "didn't like these fellows
personally and was going to see to it that they were, got fired," and that he refused to "fire
a man on those grounds." Upon this claim of Foley the Respondent bases one of its
affirmative defenses-to the effect that it had reason to believe that membership in the
Union was being denied the individuals on grounds other than nonpayment of dues. The
Trial Examiner finds no merit in the defense and does not credit Foley's testimony on this
point.' In his letter to the Union, a day or two after the above conversation, and quoted
hereinafter, Foley made no mention of any such statement by McCoskery. Had the steward
In fact given his personal dislikes as a reason for demanding the discharge, and Foley in
fact refused on such grounds, it is reasonable to believe that in his written reply on June 2
lie would have referred to it. Furthermore, credible evidence, including the testimony
of Foley and Stanich, shows' that both the stewards and management had tried, and
'continued to try, to make all the individuals involved pay their dues and initiation fees and
thus become members. Nor doesthe Trial Examiner accept as credible Foley's affirmative
answer to the following leading question by his own counsel as to the above conference :
"Did Mr. McCoskery indicate to you that he was going to go into the matter further and
'then contact you at a later date if these men did not comply with the payment of the
initiation fees and dues?" Had the interview ended on this note, there would have been
no valid reason for Foley's written refusal to discharge, sent to the Union on June 2.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
any Law Court in the United States on this issue. I feel just as confident;
now as I did in the past that Mr. Hutchison, President of the Carpenters-
International of Indianapolis, Indiana, will uphold me on my remarks.
I advise you to proceed with more caution in the future.
Because addressed to the union hall, Foley's letter did not reach McCoskery
until the latter part of June. Not having heard from Foley, by letter, McCoskery
on June 5 sent the following wire to Robert Weller, business representative of
the Montana district counsel :
UNABLE TO GET RESULTS IN REGARDS TO RELEASE. OF 1VON-UNION
EMPLOYEES COMPANY REFUSES TO COOPERATE STOP TAKE OVER:
On June 29 Weller wrote to Foley, in part, as follows :
We have your letter of June 2nd, addressed to Mr. F. S. McCoskery. Your
letter was addressed to the Labor Temple instead of to Mr. McCoskery's home
address and for that reason, there was a considerable delay in his receiv--
ing it.
s - s • s . • s' s
It was under the.above-quoted provisions 'of the contract that Local 2409-
in its letter of May 29th requested the discharge of the, five employees, with
whom your reply on June 2nd deals. -
there is one very important point in which you seem to have been
misinformed. -
Your letter states "I personally contacted the above-mentioned employees-
some weeks ago and they informed me that they have already paid their
initiation fees and one months' dues," etc. "This in itself eliminates our
Company from being held liable under Chapter XI." "
For your information, at the time of your letter, Dean Eystad, according to
Local Union records, had made no.payment of any kind. Neither had Ralph.
Talbot. James Eystad, although.he should have been a member of Local
2409 in October 1949, made a payment of $10.00 in March and a payment of
$17.50 the latter part. of May 1950. He made no payment on dues during
-the period of October to March or during the month of April. Lyle Bensom
made a payment of $15.00 May 5th, which did not complete his initiation
fee or pay any dues. Ray Neiman made a payment of $10.00 in November
1949, and a payment of $15.00 in May 1950. Although this completed the
initiation fee which was due and payable in November, he paid no dues in
the interim nor for the month of May.
This was the status of the five employees.at, the date of your letter, June.
2nd, and in the absence of any information to the contrary from the Local's-
Financial Secretary, we presume there has been no change since that time.
As you are no doubt aware, the standard initiation fee of Local 2409 is-
$25.00 and is "uniformly required as a condition. of acquiring" membership.
In addition, monthly dues of $2.25 each month are "uniformly required as-
a condition of acquiring and/or retaining membership" as provided by the
contract.
As you probably also know, the. Local Union would be entirely correct
under its By-Laws in declaring forfeited any sums paid on initiation fees,.
thirty days after payment, if membership is not completed within that time.
The fact that the Local Union extended to these employees an opportunity-
to complete their. initiation fee by periodic payments, does not waive the
Local's right to expect the applicants to keep up their dues while completing:
FOLEY'S MILL AND. CABINET WORKS 751
their initiation fee. Also, at any time during the period, the Local had
:a perfect right under its By-Laws and under the contract, to declare the
payments forfeited and expect the applicants to pay a new initiation fee in
full plus monthly dues involved.
Inasmuch as the Local did not declare the amounts forfeited and has
offered to credit the applicants with the amounts they paid, it-would-seem
to us that the Local leaned over backward to extend to the applicants more
consideration than they were, or are, entitled to under the General Constitu-
tion you refer to in your letter.
s s * s w s •
,On July 6 Foley answered Weller's letter as follows :
This will acknowledge yours of June 29th, which, I am forced to say, is in
itself a masterpiece and I still maintain you are crazy as hell.
Since I don't have time to write, I will just refer you to your Constitu-
tion & Laws of United Brotherhood of Carpenters and Joiners of America-
in effect January 1, 1947. On page 35 please read Section 43. Does Section
43 in your General-Constitution give you the right to collect retroactive dues
from non-members? .
Your reference to Dean Eystad, Lyle Benson, and Fred Talbot-For your
information, at the time I was contacted, those boys were not in our employ
l
thirty days.
The reference you make to Jim Eystad and Ray Nieman, I would be
ashamed to put on paper, but if you expect to have me go out and canvas,
and make members out of guys like this who your Union Members don't
see fit to contact from October 1949, until March and May 1950, you have
another think coming.
Please bear in mind that I am trying as best I know how to run the
Foley Millwork Company and not your Union.
Foley's claim of knowledge as to union matters is in marked contrast to his
apparent lack of knowledge as to his own payroll. Information provided by
the Respondent at the hearing establishes that Dean Eystad was hired Feb-
ruary 1, Lyle Benson on March 7, and Fred Talbot on April 25. As the above-
quoted correspondence shows, Foley was first formally notified as to Benson
on May 3 and as to Dean Eystad and Ralph Talbot on May 29. Thus, in each
case, the employee had been on the Respondent's payroll more than the required
30 days before notification of delinquency was given to the Employer.
Foley's letter, above quoted, so afar as,.the record shows, ended the exchange
of correspondence on the subject. As'a witness, Foley admitted that he dis-
charged none of the five men as a result of the union demand.
Before the hearing in this case, however, all five individuals had quit their
employment with the Respondent : James Eystad and Benson on June 2; Talbot
on May 29 ; '` Nieman on August 18, and Dean Eystad on August 21.
Of relevance also in determining the real motive • of the Respondent's refusal
to discharge the individuals-are remarks made by, Foreman Peck to the employees.
According to McCoskery's credible and undisputed testimony, he was told by
Peck in June "that it was not possible to collect back dues without the men
first being initiated into the local." Also undisputed is Weller's credible testi-
mony that on June 1 and 2 Peck admitted to him that he had advised some
* Foley, testified that Talbot was not reemployed when he returned from his extended
absence which began May 29.
752, DECISIONS-OF NATIONAL LABOR , -RELATIONS BOARD
employees that they did not ,have . to, pay. the "remainder... of their .initiation
.fee and dues" and had told some- "shop steward" that he had no. authority to
.collect dues because not bonded. Weller, according to his testimony, cautioned
Peek for giving such advice, pointing out that Peck was • "no :longer a member
of the union or the financial 'secretary of the union." . Also undisputed is the
testimony of steward Clifford French that: (1) In February Peck said, in the
presence of several employees, "What's -that man,doing collecting- dues, he's not
.a bonded member of the union,-he has no right whatever to handle union funds,"
and (2) that in March, Peck told employee. Deafi Eystad, "he did. not have to
pay :back dues, he (Peck) felt it was impossible. for the union to collect them."
On June 12 Weller filed with the Board the original charge against the-Re-
spondent, citing as an alleged unfair labor practice the refusal to discharge
,"non-members" of the Union. - -
C. Conclusions
From appraisal. of all the evidence ,the: Trial Examiner is unable to conclude
that a preponderance of it supports the allegation of the complaint that the
Respondent's conduct constitutes an unfair' labor practice within the meaning
,of the Act.
The remarks made by Foreman.Peck, accurate or ill-advised, were no more
that expressions of opinion protected by the Act. He made no promises of benefit
if the employees followed it, and no threats of reprisal if they did not.
Whether or not Foley's position on back dues is tenable in the light of the
Union's constitution and bylaws, is not a mattei for the Trial Examiner's de-
terminatioii. Yet the evidence establishes that it was on this point that he
took his-stand throughout the controveisy,-and that the matter of back dues was
first raised.by the union steward in discussion with Foley.. The evidence'falls
short of supporting the claim of General Counsel that the Respondent's conduct
aided a "dissident minority" in refraining from becoming members.
Assuming, arguendo, that Foley's failure to 'discharge upon demand actually
breached the contract, in the opinion of the-Trial Examiner the-evidence does
-not support the allegation that his conduct, either by design or effect, interfered
with, restrained, or coerced employees in the exercise of rights guaranteed by
-Section 7 of the Act.
Therefore the Trial Examiner will recommend that the complaint - be dis-
^missed. .
Upon the basis of"the foregoing findings of fact and upon the entire record in
'the case, the Trial Examiner makes the following:
CONCLusxoxs OF LAW
1. Lumber & .Sawmill Workers Local Union. No. 2409, is a labor organization
within the meaning. of Section 2 (5) of the Act.
2. Foley's Mill and Cabinet Works is engaged in commerce, within the meaning
of Section 2 (6) of the Act. '
3. Foley's Mill and Cabinet Works has not engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
Recommendations
Upon the basis of the foregoing findings of fact and conclusions of law, and
'upon the entire record in the' case,. the' Trial Examiner recommends that the
complaint be dismissed in its entirety.