Kaiser Aluminum & Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1951

93 N.L.R.B. 1203 (N.L.R.B. 1951)

KAISER ALUMINUM & CHEMICAL CORPORATION 1203
tion, maintenance, and shipping room employees of the Whitinsville
Spinning Ring Company at its Whitinsville, Massachusetts, plant,
excluding office and professional employees, guards, working fore-
men, and all other supervisors as defined in the Act, as their represent-
ative for the purposes of collective bargaining, and that pursuant to
Section 9 (a) of the Act, United Steelworkers of America, CIO, is
the exclusive representative of a]1 such employees for the purposes of
collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
KAISER ALUMINIThI & CHEMICAL CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS , LODGE No. 1366
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 'OF AMERICA, LOCAL
No. 720, AFL and CHARLES J. BAKER . Cases Nos . 15-CA-381 and
15-CB-58. March 28,1951
Decision and Order Remanding Case
On November 2, 1950, at the close of the General Counsel' s case,
Trial Examiner Sydney S. Asher, Jr., orally granted a motion of the
Respondent, Local No. 720, to dismiss the entire complaint herein.
The complaint as dismissed alleged in substance that the Respondent
Employer discriminated with respect to hire and tenure of employ-
ment, in violation of Section 8 (a) (3) and Section 8 (a) (1) of the
Act, by discharging six employees, and that, by demanding their dis-
charge, Local No. 720 attempted to cause and caused the Employer to
discriminate against the six employees in violation of Section 8 (b)
(2) and Section 8 (b) (1) (A) of the Act.
At the close of the General Counsel's case, the record showed that
Local No. 720, the holder of a valid union-security contract, had de-
manded that the Employer discharge the six employees for nonmem-
bership and that the Employer had acceded to the demand. In dis-
missing the complaint, the Trial Examiner assumed for the purpose of
his ruling that Local No. 720 had not waived a previously imposed re-
quirement that the six employees pay, in addition to uniform initiation
fees and periodic dues, an ex-membership fee of $5 as a condition of
obtaining membership in Local No. 720. The waiver issue was not
fully litigated and the Trial Examiner made no finding with respect to
it. He ruled in substance that the imposition of the ex-membership
fee was discriminatory within the meaning of proviso (A) to See-
93 NLRB No. 178.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (a) (3),1 but that the General Counsel had not sustained the
complaint in that he did not establish that the six employees tendered
the uniform initiation fees and periodic dues.
The General Counsel and the IAM, a charging union, filed requests
to review the Trial Examiner's action in dismissing the complaint.
The Trial Examiner erred in dismissing the complaint. While the
Board is not prepared on this record to determine whether the ex-mem-
bership fee constituted a discriminatory imposition, as that issue was
not fully litigated, we do not agree with the Trial Examiner that
employees must make a tender of uniform initiation fees and periodic
dues to be entitled to protection under proviso (A) of Section 8 (a)
(3) if membership in the contracting union is made available only
upon compliance with a discriminatory term or condition. Proviso
(A) does not involve a denial or termination of membership, but deals
only with the terms and conditions upon which membership is made
available. In accordance with the Board's construction of the pro-
visos in the Union Starch case,2 we hold that proviso (A) protects an
employee in such a situation whether or not a tender is made.
Accordingly, we must reverse the Trial Examiner's ruling dismiss-
ing the complaint and remand the case to the Trial Examiner for fur-
ther proceedings consistent with this Decision and Order.
Order
IT IS HEREBY ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner for further proceedings con-
sistent with this Decision and Order Remanding Case, including such
additional hearing as may be necessary and the preparation and issu-
ance of an Intermediate Report, setting forth his findings of fact,
conclusions of law, and recommendations with respect to the unfair
labor practices alleged in the complaint.
' The pertinent provision of this section is as follows : Provided further, That no
employer shall justify any discrimination against an employee for nonmembership 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 conditions generally applicable
to other members."
2 87 NLRB at pp. 783-784 . In enforcing the Board 's order in that case, the Court of
Appeals for the Seventh Circuit concluded that the Board "construed the statute in a
reasonable manner and gave effect to all its provisions ." 27 LRRM 2342.