Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

Dec 13, 1951

97 N.L.R.B. 517 (N.L.R.B. 1951)

MONSANTO CHEMICAL COMPANY 517
MONSANTO CHEMICAL COMPANY and GEORGE W. DRAPER
INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL No. 16, A. F. L.
and GEORGE W. DRAPER. Cases Nos. 14-CA-351 and 14-CB-5°.
December 13,1951
• Decision and Order
On June 14, 1951, Trial Examiner Charles W..$chneider issued
his Intermediate Report in this consolidated case, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the Respondent
Company, the Respondent Union, and the General Counsel filed ex-
ceptions to the Intermediate Report, together with supporting briefs.
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 entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with our
findings, conclusions, and order herein set forth.
The Trial Examiner found, and we agree, that the Respondent
Company discharged Henry McClellan, in violation of Section 8 (a)
(3) and 8 (a) (1) of the Act, and that the Respondent Union caused
that discharge and thereby violated. Section 8 (b) (2) and 8 (b) (1)
(A) of the Act.
The critical facts in this case, as more fully related in the Inter-
mediate Report, are undisputed :
Henry McClellan had been a member in good standing of the
Respondent Union for several years prior to September 9, 1948. On
that date he sent a letter to the Union in which he stated, "Please
except [sic] this letter as my resignation from Local 16, effective
October 15, as of the ending of the contract year." On October 8,
1948, McClellan and two other employees wrote the Company asking
that their checkoff of union dues be discontinued as of October 15,
1948. The Company-before receiving the October 8 letter-had
already deducted McClellan's dues and paid them to the Union.
Beginning with November 1948, for the months of November and
December 1948, and January, February, March, and April, 1949, the
Company continued to check off McClellan's dues but held the money
in escrow.
The Union, disregarding McClellan's letter of September 9, sub-
mitted to the Company 'on January 17, 1949, a list of members--
97 NLRB No. 77.
986209-r2-vol 97-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including McClellan-and on January 25, 1949, asked for "proper
action" with respect to a group, of alleged delinquent members-
again including McClellan. On February 16, 1949, the Union again
sent the Company a list of members in arrears and requested the
Company, in accordance with its agreement with the latter, to dis-
charge those who did not pay up such obligations by March 1, 1949.
McClellan's name was also on this latest list.
A dispute developed at this point between the Company and the
Union as to whether under the contract the Company was required
to discharge McClellan and the others. The contract,' effective Octo-
ber 15, 1948, terminating October 15, 1949, contained the following
union-security provision :
All employees who, on the effective date of this agreement, are
members in good standing, in accordance with the Constitution
and By-Laws of the Union, and all employees who thereafter
become members, shall, as a condition of employment, remain
members of the union in good standing for the duration of this
agreement.
The foregoing clause shall go into effect at such time as the
National Labor Relations Board shall hold a referendum among
employees and shall certify authorization to make an agreement
requiring union membership as a condition of employment.
Although the Union filed a petition for a union-security election on
October 15, 1948, the date this latest agreement was executed, it was
not until January 7, 1949, that an election was held, and it was not
until January 10, 1949, that the Union was certified as authorized to
enter into a union-security agreement with the Company?
As already indicated, early in March 1949, the Company and the
Union were in disagreement as to whether, under the union-security
provision quoted above, the Company was required to discharge
McClellan and the others. At a meeting h6ld on March 4, 1949, the
Company and the Union agreed to submit that question to arbitration
pursuant to an arbitration clause contained in the agreement.
The arbitration hearing was held on April 22 and 23, 1949.
McClellan and his attorney were present and participated, and had
initially signed a submission agreement agreeing to be bound by the
award. It was further agreed that his discharge would not be effected
until a decision was reached and that additional time would be given
him to pay his dues if any award required that he do so. On July 20,
' The Company and the Union, since October 1946, had contracts in existence which
contained union-security provisions. The October 15, 1948, agreement was preceded by
one executed February 5, 1948, but effective as of December 5, 1947, and by its terms
expired on October 15, 1948. It contained the same union-security clause as the one
which followed.
2 The UA election was delayed because of the pendency of representation petitions. The
election was held immediately upon the dismissal of those petitions.
MONSANTO CHEMICAL COMPANY 519
1949, a majority of the arbitration board issued a decision and award,
directing McClellan's discharge unless he paid arrears in dues within
30 days after the award. On August 19, 1949, McClellan requested
the Company's personnel director to turn over to the Union the $12
held in escrow, and wrote an authorization to that effect. On August
22, 1949, the Company notified the Union orally of this authorization,
and the Union, also on the same day, advised the Company that it was
its position that McClellan had failed to tender his dues in accordance
with the arbitration award, and insisted on his discharge. The latter
position was confirmed in writing by the Union in a letter to the
Company dated August 23, 1949. On August 24, 1949, the Company
wrote the Union, enclosing the sum of $12 which it held in escrow. On
August 25, 1949, the Union again demanded McClellan's discharge,
and on the same day, the Company discharged him.
It seems clear from the above facts that McClellan was discharged
because of his failure to pay dues for a period which included the
months of November and December 1948 and part of January 1949.
However, this was a period when the Union had not yet been certified
under Section 9 (e) to enter into a union security agreement, and was
therefore without authority to enforce the union security clause. , This
retroactive application of the union security clause would therefore have
been illegal even if McClellan had remained a member of the Union
after October 15,1948 3 Moreover, we find, as did the Trial Examiner,
that McClellan's letter of September 9,1948, resigning from the Union
as of October 15, 1948, was an effective resignation from the Union.'
Therefore, as the maintenance of membership clause of the contract
by its own terms was not effective until January 10, 1949 (when the
Union was certified as authorized to execute such agreement), there
was never any subsequent contractual obligation for McClellan to
rejoin the Union, and the discharge for failure to pay dues from
November 1948 through August 1949 cannot be defended by the con-
tract. Thus we find, on both of these grounds, that the contract was
illegally applied, and it therefore becomes unnecessary to pass upon
the Trial Examiner's finding that the contract was invalid on its face.
The Trial Examiner ruled that, but for the fact that McClellan had
complied with the arbitration award, and was nonetheless discharged,
he would have honored the award and dismissed the complaints. We
disagree with this reasoning.
'New York Shipbuilding Corporation , 89 NLRB 1446 ; General American Aerocoach,
etc., Corporation, 90 NLRB 239 , Eclipse Lumber Company , 95 NLRB 464.
4 Although the Union in its letter to the Company dated March 2, 1949, stated, among
other things , that McClellan and the other employees "have been and still are members
in good standing . . . inasmuch as the union to date has not suspended or expelled
them, nor have these members properly severed their membership in the union . . ." it
does not appear that the Union 's constitution and bylaws have any procedural requirements
for resigning from the Union which McClellan failed to follow.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is quite clear that as a matter of law the Board is not bound by
the arbitration award and the agreement of McClellan to comply
therewith. Section 10 (a) of the Act provides that the Board's power
to prevent unfair labor practices affecting commerce "shall not be
affected by any other means of adjustment or prevention that has been
or may be established by agreement, law, or otherwise. . . ." The
Ninth Circuit In N. L. R. B. v. Walt Disney Productions,' after re-
ferring'to this provision in the statute, said:
Clearly, agreements between private. parties cannot restrict the
jurisdiction of the Board. We believe the Board may exercise
jurisdiction in any case of an unfair labor practice when in its
discretion its interference is necessary to protect the public rights
defined in the Act. -
The Board has in the past exercised the "discretion" to which the
court alluded and has remedied an unfair labor practice even
though arbitration had, in fact, been used by the parties to dispose
of an issue arising under an agreements We have already found that
McClellan's discharge was violative of the Act. It is thus clear that
the terms of the arbitration award directing the discharge of McClellan
unless he paid the dues in question were contrary to existing law.
There can be no justification for deeming ourselves bound, as a policy
matter, by an arbitration award which is at odds with the statute. We
Shall therefore disregard the award in this case. There is thus no need
for us to decide, as the Trial Examiner did, whether McClellan had in
fact complied with the terms of the arbitration award.
Accordingly, we find that by causing McClellan's discharge, the
Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of
the Act, and by discharging him the Respondent Company violated
Section 8 (a) (3) and 8 (a) (1) of the Act.'
The Remedy
Having found that the, Respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and-take
certain affirmative action designed to effectuate the policies of the Act,,
as recommended by the Trial Examiner. However as our finding of
discrimination is not predicated on the invalidity of the union-security
provision in the agreement between the Company and the Union, but
rather on the illegal application of that provision, we shall not require,.
146 F 2d 44. 48.
Wisconsin Axle Division, The Tunken -Detroit Axle Company , 92 NLRB 968; Hamilton-
Scheu & Walsh Shoe Company ,' 80 NLRB 1496, Rieke Metal Products Corporation, 40,
NLRB 867; J . Klot- t Company, 13 NLRB 746 . See also Combustion Engt'neering Corso-
pany , Inc., 86 NLRB 1264
The Respondents , in their exceptions , also raise several procedural contentions. As to
those, we are satisfied that the Trial Examiner ' s disposition of those issues in the Inter-
mediate Report is in accord with Board practice , and accordingly adopt without further
comment his findings and conclusions as to that phase of the case.
MONSANTO CHEMICAL COMPANY 521
as the Trial Examiner did, that the Company and the Union remove
the clause in question from the agreement.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. Monsanto Chemical Company, St. Louis, Missouri, its officers,
agents, successors, and assigns shall :
a. Cease and desist from :
(1) Encouraging membership in International Chemical Workers
Union, Local No. 16, A. F. L., or any other labor organization of its
employees, by discriminating in regard to their hire or tenure of
employment, except to the extent permitted by the proviso to Section
8 (a) (3) of the amended Act.
,(2) In any like or related manner interfering with, restraining,
,or coercing its employees in the exercise of their right to self-organ-
ization, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and 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) (3) of
the Act.
b. Take the following affirmative action necessary to effectuate the
policies of the Act :
(1) Offer Henry McClellan immediate and full reinstatement to
his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges.
(2) Post at its plant in St. Louis, Missouri, copies of the notice
.attached, hereto marked "Appendix A" .s Copies .of said notice, to
be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the Company's representative, be
posted by the Company 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 Com-
pany to insure that said notices are not altered, defaced, or covered by
any other material.
(3) Upon request, make available to the Board or its agents
pertinent records necessary to expedite compliance with this recom-
mended order.
s In the event that this Order is enforced by a 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."
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent Company has taken to comply herewith.
II. International Chemical Workers Union, Local No. 16, A. F. L.,
its officers, representatives, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Causing or attempting to cause Monsanto Chemical Company,
its officers, agents, successors, and assigns, to discharge any of its
employees because they are not members in good standing in Inter-
national Chemical Workers Union, Local No. 16, A. F. L., or any
other labor organization, except in accordance with Section 8 (a) (3)
of the Act; or in any other manner causing or attempting to cause
said Company, its officers, agents, successors, and assigns, to dis-
criminate against any of its employees in violation of Section 8 (a) (3)
of the Act.
(2) Restraining or coercing employees of the Company, in the
exercise of their 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 bargaining or other mutual aid or
protection, and to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action necessary to effectuate the
policies of the Act :
(1) Immediately notify the Company and Henry McClellan, at
his last known place of residence, in writing, that it has no objection
to the immediate reinstatement of Henry McClellan to his former
or substantially equivalent position, without prejudice to his seniority
and other rights and privileges.
(2) Post immediately in conspicuous places in its business office
and wherever notices to its members are customarily posted, copies
of the notice attached hereto marked "Appendix B." 9 Copies of
said notice, to be furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by an official rep-
resentative of the Union, be posted by it immediately upon receipt
thereof and be maintained for a period of at least sixty (60) consecu-
tive days thereafter. Reasonable steps shall be taken by the Union
to insure that said notices are not altered, defaced, or covered by any
other material.
(3) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order what steps
it has taken to comply herewith.
Y Sae footnote 6, supra.
MONSANTO CHEMICAL COMPANY 523
III. Monsanto Chemical Company, St. Louis, Missouri, its officers,
agents, successors, and assigns, and International Chemical Workers
Union, Local No. 16, A. F. L., its officers, representatives, agents,
successors, and assigns, shall, jointly and severally, make whole Henry
McClellan for any loss of pay he may have suffered because of the
discrimination against him, in the manner set forth in Section V of
the Intermediate Report entitled "The Remedy."
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES OF MONSANTO CHEMICAL COMPANY
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, we hereby notify our employees that :
WE WILL NOT encourage membership in INTERNATIONAL CHEMI-
CAL WORKERS UNION, LOCAL No. 16, A. F. L., or any other labor
organization, by discriminating in regard to hire or tenure of
employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the amended Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to re-
frain from any or all 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) (3).
WE WILL offer Henry McClellan immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges.
WE WILL also make whole Henry McClellan for any loss of
pay incurred as a result of the discrimination against him.
MONSANTO CHEMICAL COMPANY,
Employer.
By -----------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL CHEMICAL WORKERS
UNION, LOCAL No. 16, A. F. L.
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, we hereby notify you that :
WE WILL NOT cause or attempt to cause MONSANTO CHEMICAL
COMPANY, its officers, agents, successors, or assigns, to discharge
or otherwise discriminate against any of its employees because
they are not members in good standing of INTERNATIONAL CHEMI-
CAL WORKERS UNION, LOCAL No. 16, A. F. L., except in accordance
with Section 8 (a) (3) of the Act, or in any manner cause or
attempt to cause that Company, its officers, agents, successors,
or assigns to discriminate against its employees in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of MONSANTO CHEMI-
CAL COMPANY in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargaib collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized by Section 8
(a) (3) of the Act.
WE HAVE notified HENRY MCCLELLAN and MONSANTO CHEMICAL
COMPANY that we have no objection to the employment of
McClellan because of his nonmembership in good standing in
the Union.
WE WILL also make whole HENRY MCCLELLAN for any loss of
pay incurred as a result of the discrimination against him.
INTERNATIONAL CHEMICAL WORKERS UNION,
LOCAL No. 16, A. F. L.,
Union.
Dated ------------ By------------------=------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed and upon complaint and notice of hearing subsequently
issued and served by the General Counsel, and answers having been filed, a
MONSANTO CHEMICAL COMPANY 525
hearing upon due notice was held at St. Louis, Missouri, before the undersigned
Trial Examiner on March 19 and 20, 1951, involving allegations of unfair labor
practices in violation of the National Labor Relations Act, as amended (61 Stat.
136), by the above-named Company and Union. Briefly the allegations, as
amended at hearing, are to the effect that by the maintenance of a contract con-
taining an illegal union-security clause and by the discharge of employee Henry
McClellan on August 25, 1949, for nonmembership in good standing in the Union,
the Company and the Union violated, respectively, Section 8 (a) (1) and (3)
and Section 8 (b) (1) (A) and (2) of the Act. All parties were represented
by counsel, were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the issues, to argue the
issues orally upon the record, and to file briefs and proposed findings. On May 7,
1951, briefs were submitted by all counsel except for McClellan and have been
considered. On the same date the parties submitted a factual stipulation and
also a stipulation for correction of the transcript of record. The stipulations
are approved and the record ordered corrected accordingly. Procedural issues
raised are disposed of in the following findings and conclusions.
Upon the entire record in the case and from observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The parties stipulated to the following facts.
Monsanto Chemical Company, a Delaware corporation, is engaged in the
manufacture of heavy chemicals, organic chemicals, and intermediates. The
Company operates about 17 plants throughout 13 States of the United States.
This proceeding is concerned' only with the Company's John F. Queeny plant
which is located at St. Louis, Missouri.
During the last preceding year, the Company purchased raw materials for
the Queeny plant comprising inorganic commercial acids and salts, refined coal
tar crudes, and synthesized and natural organic base materials, valued in excess
of $1,000,000, of which more than 75 percent was purchased and shipped to the
Queeny plant from points outside the State of Missouri. During the same period,
the Company sold finished products valued in excess of $1,000,000, of which more
than 75 percent was sold and shipped from the Queeny plant to points outside
the State of Missouri.
The Company concedes that it is engaged in commerce within the meaning of
the National Labor Relations Act.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, Local No. 16, A. F. L., is a labor
organization affiliated with the American Federation of Labor admitting to
membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. The contracts
For some years the Union has been the duly certified bargaining agent for
the Company's production and maintenance employees at its John F. Queeny
plant, and during that time has had continuous contractual relations with the
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company. During World War II, a War Labor Board Directive required the
parties to establish a standard maintenance-of-union-membership clause with
the then customary escape provision.
On October 15, 1946, the Company and the Union executed a bargaining con-
tract effective for 14 months after date, containing the following union-security
clause :
Article 2, Section 2., All employees who as of June 12, 1946, were members
of the union in good standing in accordance with the Constitution and
By-Laws of the Union, and all employees who thereafter became or become
members shall as a condition of employment remain members of the union
in good standing for the duration of this agreement.
That contract was succeeded by another dated February 5, 1948, but effective
from December 15, 1947, the expiration date of the 1946 contract, to October 15,
1948, and containing the following union-security clause :
Article 2, Section 2. All employees who, on the effective date of this Agree-
ment, are members of the union in good standing, in accordance with the
Constitution and By-Laws of the union, and all employees who thereafter
become members, shall, as a condition of employment, remain members of
the union in good standing for the duration of this Agreement.
The foregoing clause shall go into effect at such time as the National
Labor Relations Board shall hold a referendum among employees and shall
certify authorization to make an Agreement requiring union membership as
a condition of employment.
This agreement, it will be noted, eliminated the retroactive clause contained in
the 1946 document.
The February 5, 1948, contract was succeeded by another dated and effective
October 15, 1948, with an expiration date of October 15, 1949. This agreement
contained the same clauses, quoted above, with respect to union security as its
predecessor. It also contained an arbitration clause.
That contract, in turn, was succeeded by another effective October 15, 1949, to
and including April 15, 1951, and subsequently extended by supplements to
1953. It contains the following union-security clause :
Article 2, Section 2. All employees in the bargaining unit, who, on the
effective date of this agreement, are members of the union and all employees
who thereafter become members, shall, as a condition of employment , remain
members of the union in good standing for the duration of this agreement.
During the negotiations for the agreement effective December 15, 1947, the
Union, having the requisite showing, sought to file a petition with the Regional
Director for a union-shop election, but was informed that the petition could not
be entertained because of the pendency of certain representation petitions for
craft severance. On the date of execution of the successor contract, October
15, 1948, the Union filed a petition for a union-shop election which was docketed
and became known as Case No. 14-UA-2675. Again because of the pendency of
petitions for craft severance no election could be held until January 7, 1949,-
after the craft severance petitions had been dismissed. On January 10, 1949,
the Regional Director certified that the Union was authorized to enter into a
union-security agreement with the Company.
The October 1946 agreement contained a provision for involuntary checkoff
of dues of union members ; those of February and October 1948 for voluntary
checkoff of dues of employees who authorized such deduction by assignment
revocable after 1 year or the termination of the agreement, whichever occurred
MONSANTO CHEMICAL COMPANY 527
earlier. The record does not disclose whether there is any provision in the
1949 contract for checkoff of dues. Union dues are $2 per month.
B. The union constitution
Article XV, Section 20 of the Constitution of the International Union and
Article III, Section 8, 9, and 10 of the Constitution of the local union , provide
as follows :
All dues and assessments are payable on the first day of the month to which
they apply.
Any member two (2 ) months in arrears is in bad standing and shall not
be permitted benefits nor shall they be permitted to attend any meetings.
Any member three ( 3) months in arrears shall stand suspended . - [Unless
the International Executive Board waives this provision ] Any member
so suspended shall be required to pay all arrearage , not to exceed twelve
(12) months' back dues, plus the current month 's dues and a reinstatement
fee of two dollars ($2.00). One dollar ($1.00) of the reinstatement fee
shall be paid into the International Union treasury . There shall be no
exemptions for fines and assessments.
During all material times herein the Company was in possession of copies of
the constitution and bylaws of the International and local union.
C. The discharge of McClellan
Henry McClellan , until his discharge on August 25, 1949, was employed by the
Company for more than 15 years and was in the bargaining unit represented by
the Union . Throughout the years 1946 and 1947 , McClellan was a member in
good standing of the Union in accordance with its constitution and bylaws.
The February 1948 contract was due to expire on October 15 , 1948. Over a
month before that date, on September 9, 1948, McClellan sent and within a few
days the Union received a letter which stated :
Please except [ sic] this letter as my resignation from Local 16, effective
October 15th , as of the ending of this contract year.
My reason is that I am not satisfied with officers in charge in handling
the union 's business.
Thereafter , on October 8, 1948, McClellan and two other employees mailed and
the Company within a few days received the following letter:
Please discontinue checkoff of Union Dues as of October 15, 1948, for the
following names :
( Signed ) H. MCCLELLAN #169.
W. JEFFERSON #218.
E. WYATT #222.
Prior to receipt of this letter the Company had already deducted McClellan's
dues for the month of October 1948 and had paid them to the Union. After
receipt of the letter , however, the Company ceased to make such payments to
the Union , though it continued to deduct McClellan 's dues for a number of months
thereafter and to hold the money in escrow. This action was a consequence of
an assertion by the Union that McClellan 's resignation and cancellation of the
checkoff authorization were ineffective to relieve him of his financial obligations
to the Union.
On January 17, 1949, the Union submitted to the Company a list of members
"as of the date specified in Article 2" of (presumably ) the October 1948 contract
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which list included the name of McClellan. On January 25, 1949, the Union wrote
the Company requesting the latter to "take proper action" with respect to 17
persons, among them McClellan named as delinquent in union dues.
On or about January 26 , 1949, McClellan sustained an injury arising out of his
employment and was incapacitated until February 28, 1949, when he returned
to work. He then worked until April 16, 1949, when he again ceased work due
to the same injury. On July 31 , 1949, McClellan was discharged by his doctor
and thereupon began a 3-weeks ' paid vacation , returning to work August 22, 1949.
He worked through August 25, 1949, and was discharged at the end of that day.
The events between January and late August 1949 which led up to McClellan's
discharge were as follows : -
On February 16, 1949, the Union sent the Company a list of members in
arrears in dues, and "in good standing on January 10, 1949," whom it requested
be laid off until their dues were paid up. The letter further requested that if the
delinquencies were not defrayed by March 1 , 1949, the employees be "permanently
discharged in accordance with Article 2, Section 2 of the Agreement of October
15, 1948." McClellan 's name was included on the accompanying wlist, with in-
dicated arrearages in dues from November 1, 1948.
Dispute arose between the Company and the Union as to whether some of these
employees , among them McClellan , should be discharged . In a letter to the
Company dated March 2 , 1949, the Union stated its contention to be
. . . that these . . . employees have been and still are "members of the
union in good standing , in accordance with the Constitution and By-Laws
of the union ," irrespective of the fact that they are in arrears in the payment
of their dues, inasmuch as the union , to date, has not suspended or expelled
them, nor have these members properly severed their membership in the
union.
A meeting was held between the Company and the Union on March 4, 1949,
at which they agreed to submit to arbitration under the contract the issue as to
whether McClellan and another employee , L. J. Smith, should he discharged
unless they complied with Article 2, Section 2 of the contract.
An arbitration hearing was subsequently held on April 22 and 23, 1949, before
a board consisting of one member chosen by the Company , one by the Union,
and an impartial arbitrator , Elmer H. Hilpert, chosen by both upon the suggestion
of the Company . Henry McClellan was present at this hearing, was represented
by an attorney , Gillette F. Wright, participated fully therein , and agreed in
writing that the decision of a majority of the board of arbitrators should be final
and binding on all parties , and a complete disposition of McClellan 's case.
The Company took no active part in the proceedings , other than to supply neces-
sary factual data, its position being that the matter was essentially a dispute
between the Union and its members or former members ; that the Company's
only interest was to see that the terms of the contract were carried out; but
that it could not acquiesce voluntarily to the Union 's request.
On July 20, 1949, a majority of the board arbitrators issued a decision and
award, from which the company member dissented . The holding was that Mc-
Clellan and Smith were subject to the union -security provision of the contract
and they were given 30 days to comply under penalty of discharge.
On August 2, 1949, McClellan was advised by the Company of the arbitration
award and indicated that he understood its terms, but that he did not propose
to do anything about the matter until he had returned to work from his vaca-
tion-August 22 . However, on August 19, the thirtieth day after the arbitra-
tion award , McClellan executed and delivered to the Company a written au-
thorization releasing to the Union the sum of $12, which had been previously
MONSANTO CHEMICAL COMPANY 529
deducted from his pay by the Company and impounded pending determination
of the dispute. This sum represented dues for the months from November 1948
to April 1949, inclusive. The Company was unable to advise the Union of this
action, however, until the following Monday, August 22.
On August 22, 1949, the Union by letter notified the Company that McClellan
and Smith had not complied with the arbitration award. On the same day the
Company orally notified the Union that McClellan had authorized the release of
his checked-off dues ; the Union responded that the action did not constitute
compliance with the award and demanded that the discharges be executed, a
position" which it confirmed in writing the following day. On August 24, the
Company acknowledged receipt of the Union's August 23 letter, enclosed its
own check for $12, stated its belief that McClellan's position was that his authori-
zation constituted compliance with the award, and inquired as to the Union's
position under the circumstances. On the following day the Union acknowledged
receipt of the $12 and orally reiterated its contention that McClellan had not
complied with the award and should be discharged. And on August 25 the
Company discharged him. Smith had been terminated previously on August 19.
D. The charges, the settlement agreements, and the request for review
Four days after McClellan's discharge, on August 29, 1949, Gillette F. Wright,
McClellan's legal counsel, filed with the Board and signed as "attorney," charges
against the Company and the Union asserting that McClellan and Smith had
been discriminatorily discharged. Wright was in fact the attorney for both
McClellan and Smith. Upon these charges the Regional Director, on April 6,
1950, issued complaints, consolidated for hearing, against the Company and the
Union. The gist of these complaints was that the Union caused and the Com-
pany discharged McClellan and Smith for their nonmembership in the Union
though there was no contract validly requiring such membership as a condition
of employment.
The case was noticed for hearing for May 9, 1950, and answers duly filed, but
on May 9, 1950, the Regional Director indefinitely postponed the hearing. And
on the following day, May 10, a settlement agreement settling both McClellan's
and Smith's cases and approved by the Regional Director, was executed and
signed by the Company, the Union, Smith, and Wright as attorney for Smith ;
but not by McClellan, The agreement provided that upon compliance with its
terms the Regional Director would withdraw the complaints and dismiss any
charges not withdrawn. McClellan refused to consent to the settlement. Gil-
lette, who apparently deemed the terms satisfactory, then withdrew as McClel-
lan's counsel. McClellan then secured a new attorney, James R Blumenfeld.
On May 18, 1950, Blumenfeld wrote the General Counsel in Washington, D. C.,
stating that he wished to obtain a review of the settlement agreement and
requested an extension of time therefor. In the meantime questions had appar-
ently arisen as to whether the procedure followed had been correct, for on
May 24, 6 days after Blumenfeld's letter to the General Counsel, the Regional
Director issued an order withdrawing the complaints, and on the same day the
parties executed an amended settlement agreement stating in part:
Upon the basis of this Agreement, the Regional Director shall decline
to issue a Complaint herein. A review of such action may be obtained
pursuant to Section 203.19 of the Rules and Regulations of the Board if a
request for same is filed without [sic] ten (10) days thereof. This Agree-
ment is contingent upon the General Counsel sustaining the Regional
Director's action in the event of a review.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime after May 18-the date is not disclosed-the General Counsel replied
to Blumenfeld 's letter substantially to the effect that the case was in the hands
of the Regional Director and that an extension of time for requesting review
was accordingly unnecessary.
On May 25, 1950, the Regional Director sent letters to the parties notifying
them that he was refusing to issue complaints and advising them that any re-
quest for review must be filed within 10 days of receipt of his letter . McClellan
received this letter on May 26, 1950.
Eighteen days later, on June 14, 1950, Attorney Blumenfeld wrote a letter to
the General Counsel, which the latter received about June 16, acknowledging
that the time for seeking review had expired , but requesting a 2-week extension
of time, and stating further than McClellan had decided to appeal the matter
himself.
On June 30, 1950, the General Counsel advised Attorney Blumenfeld that time
to file a request for review had been extended to July 7.
In the meantime McClellan changed his attorney again. On July 5, 1950, the
firm of Witherspoon , Lewis and Draper as attorneys for McClellan filed a re-
quest for review with the General Counsel , who acknowledged this request on
July 11 and stated that it would be considered. Copies of the acknowledgment
were mailed to all the parties. No copy of this request was filed with the Re-
gional Director-though the Board 's Rules and Regulations required it.
On July 12, 1950, not knowing of the request for review, the Acting Regional
Director wrote to all the parties to the effect that no request for review had been
made and that the settlement agreement was in full force and effect. But on
July 14, lie wrote the parties that he had just been advised of the request for
review, and that his letter of July 12 should therefore be disregarded.
On December 15, 1950, the General Counsel by letter received within 3 or 4
days thereafter advised the parties that he had sustained the appeal and directed
the Regional Director to process the charges as to McClellan.
On February 27, 1951, George W. Draper, attorney for McClellan, filed charges
against the Company and the Union identical with the original charges filed by
Gillette, except that Draper's charge referred only to McClellan. And on the
same day, new complaints were issued , upon which the instant hearing was held-
E. Conclusions
1. The procedural questions
The Respondents have raised a number of procedural considerations as grounds
for summary dismissal . The principal contentions , from which , subsidiary
conclusions flow, are that : ( 1) The requests for review was untimely ( 2) only
Attorney Wright could file a request for review, because the privilege of making
such a request is restricted to "the person making the charge" ; and (3) the
request was fatally defective because no copy thereof was filed with the Regional
Director . As a consequence , the contentions run (a ) the settlement agreement
was res judicata; (b) the original charges expired and the issues raised by them,
(1) could not form the basis of any complaint whatever and (2 ) could not form
the basis of any complaint not barred by the 6 months' limitation in Section 10-
(b) ; and ( c) the Draper charges could not provide the basis for a complaint be-
cause ( 1) the statute of limitations had run and ( 2) Draper was not a party im
interest and an "improper" party to file a charge.
These contentions are found not to be sustained.
MONSANTO CHEMICAL COMPANY 531
Section 203.19 of the Rules and Regulations of the Board then in effect said :
If, after the charge has been filed, the regional director declines to issue
a complaint, he shall so advise the parties in writing, accompanied by a
simple statement of the procedural or other grounds. The person making
the charge may obtain a review of such action by filing a request therefor
with the general counsel in Washington, D. C., and filing a copy of the request
with the regional director, within 10 days from the service of the notice of
such refusal by the regional director. [Emphasis supplied.]
Section 203.86 of the same rules stated in part :
Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after service of a notice or other
paper upon him, and the notice or paper is served upon him by mail, 3 days
shall be added to the prescribed period.
Section 203 93 of those rules stated :
Rules to be liberally construed.-The Rules and Regulations in this part
shall be liberally construed to effectuate the purposes and provisions of
the Act.
The notice of refusal to issue complaint was served on McClellan by mail on
May 26. The 13 days allowed for appeal by Sections 203.19 and 203.86 expired
on June 8. The request for extension based on the May 25 notice did not reach
the General Counsel until June 16 It will be noted, however, that Blumenfeld
had sought an extension of time from the General Counsel on May 18 after the
execution of the May 10 settlement agreement-well within the 13-day period-
and was informed that the case was still in the hands of the Regional Director
and that an extension was unnecessary. It was not the fault of McClellan or
Blumenfeld that the other parties thereafter took action over which the former
had no control, namely, the execution of a new settlement agreement. Having
done everything he could to preserve his rights and having in timely fashion
taken steps to perfect an appeal, McClellan should not suffer prejudice because
the other parties without his consent sought to start the proceedings all over
again If the contractors are to be permitted to perfect their procedure, they
should not be allowed thereby to put McClellan in a procedural whipsaw by which
they obtain the fruit of their fresh start while denying him the right to contest
either the agreements or the procedure. I find them estopped under the cir-
cumstances from making the claim that the appeal was untimely. But beyond
that I find that Blumenfeld effectively took steps to perfect an appeal within the
meaning of Section 203.19 on May 18, and that what the other parties did there-
after ex party could not extinguish his rights That Attorney Draper did not
serve a copy of his request for review on the Regional Director simultaneously
with service on the General Counsel seems mere technical irregularity. Notice
of the request was sent by the General Counsel to all parties within the next
several days, and no apparent prejudice resulted. Whether or to what extent
the Administrative Procedure Act by implication withdrew from the Board any
of the authority it formerly possessed to waive its rules (N. L. R. B. v. Pacific
Gos and Light Co., 118 F. 2d 780, 788-9, C. A. 9) need not be determined. I do
not in any event construe that Act as modifying the Board's or the General
Counsel's power to grant reasonable, noncapricious extensions of time in indi-
vidual situations where necessary to serve the ends of justice and to effectuate the
Act, and where no substantive prejudice results.' If the settlement agreement
1 The situation suggests , however, that a specific provision in the rules giving the General
Counsel and the Board such authority may be desirable.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been complied with by the Respondents without notice of, and in reliance
upon the belief that there had been no request for review, a different question
would be presented, and a different conclusion might be required.
From these conclusions it follows that the settlement agreement of May 25
was not res judicata . Moreover, the agreement specifically provided that it
was "contingent upon the General Counsel sustaining the Regional Director's
action in the event of review." The condition not having been satisfied, the
agreement never became effective with respect to McClellan. It is consequently
unnecessary to discuss whether the doctrine of res judwcata would be applicable
in any event.
The subsidiary contentions with respect to the expiration of the original
charges therefore also fall. As to the assertion that Draper was an improper
person to file a charge and not a party in interest, two considerations seem dis-
positive. In the first place I do not apprehend that, if the first charge supports
jurisdiction, and I find that it does, the Draper charge was a prerequisite to
valid process. In the second place, under Section 10 (b) of the statute and
Section 203.19 of the Rules and Regulations then in effect, any person may
file a charge: There is no requirement of interest. Brophy Engraving, 94 NLRB
719.
Finally, there is the question as to whether anyone other than Attorney
Wright could file the request for review, in view of the fact that rule 203.19
appears to authorize such review only by the "person making the charge." The
choice of term "person" was apparently deliberate. Note, for example, that
the preceding sentence of the rule used the word "parties." Both words are
defined by the rules in such fashion as to be mutually exclusive. It is obvious
that procedural difficulties and disabilities may ensue where charges are filed
by one person alleging discrimination as to others, the Regional Director dis-
misses or settles the case over the protests of the discriminatees, and the
charging person then refuses to appeal. In the absence of representative status
in the chargor evident fromi the face-of the charge,,it is questionable that any
individual other than the chargor could appeal. Policy considerations might
forbid collateral investigation as to whether the charge was filed -in a repre-
sentative capacity when it does not itself so disclose. And if more than 6
months has elapsed since the discrimination, Section 10 (b) would effectively
preclude new charges. To avoid such possible difficulties it might be desirable
to amend the rules, perhaps by providing that "any aggrieved party" may file
a request for review.
In the instant case, however, no disability results. The charges disclose on
their face that Wright filed them as "attorney" and not as an individual, and
the evidence is that he was acting as attorney for Smith and McClellan. This
.then, like the authorized pleading or related action of an attorney, was the
action of Smith and McClellan themselves. They were therefore the "persons"
filing the charges and could seek review either personally or by a representative.
2. The merits
As originally drafted, the second complaints-upon which the hearing was
held-alleged that McClellan was discharged and refused reinstatement at
the insistence of the Union about August 25, 1949, for nonmembership in good
standing in the Union, though there was not then in existence a valid contract
requiring union membership as a condition of employment ; resulting in conse-
quent violations of Section 8 (a) (1) and (3) and 8 (b) (1) (A) and 8 (b)
(2). During the hearing the complaints were amended to allege additionally,
in substance , that from such date to the present time the Respondents have
unlawfully reauired employees to maintain union membership.
MONSANTO CHEMICAL COMPANY 533
Neither on November 1, 1948, the time when McClellan assertedly became
delinquent in union dues, nor on August 25, 1949, when he was discharged,
nor at any intervening time, was there in existence any valid contract requiring
union membership as a condition of employment. This would be so even if
the Union had been authorized on October 15, 1948, to make a contract requiring
such a condition, which it was not; and even if McClellan's withdrawal dated
September 9, 1948, was not effective to terminate his obligation under the con-
tract, though I find that it was.
All the contracts from October 15, 1948, forward required union members
to retain their union membership during the contractual term. Such a provision
has been held by the Board to be illegal because it requires union membership
of union members during the first 30 days of the contract-a result the Board
has found to be violative of one of the provisos to Section 8 (a) (3) of the
statute. National Foundry and Furnace Co., 88 NLRB 1083; Worthington
Pump d Machinery Co., 93 NLRB 527; L. Ronney & Sons, 93 NLRB 1049.2
The Respondents point out that the contracts in question were in some re-
spects more lenient than the statute, in that they did not and do not require
union membership of any employee who did not voluntarily choose to join. It
is therefore urged that in their totality the agreements constitute a form of
voluntary union security less restrictive than the law, and for that reason are
permissible. It is quite true that-other conditions being satisfied-the statute
permits the acquisition of union membership to be made compulsory after 30
contractual days; and also evidently true that the contracts in question
appear to contemplate the voluntary acquisition of union membership either
in the future or at some time in the past. In that regard the contracts are less
restrictive than the Act. However, they also provide for compulsory retention
of membership without 30-day opportunity for escape. In that respect they
constitute a greater, not lesser, form of security than statutorily authorized.
As I understand the import of the Board decisions cited above, the invalid pro-
vision is not saved by the fact that in other respects the parties contracted for
less union security than possible under the Act.
It is consequently found that at all times since August 25, 1949, the Union,
in violation of Section 8 (b) (1) (A) and (8) (b) (2), has caused the Company
to require, and the Company, in violation of Section 8 (a) (1) and (3), has
required employees to maintain membership in the Union as a condition of
employment.
Under ordinary circumstances the conclusion would automatically follow from
these premises that McClellan's discharge for nonmembership in the Union was
violative of the Act. This is not, however, the ordinary circumstance.
It has been seen that the issue of McClellan's termination was arbitrated under
the contract machinery and that the decision was adverse to McClellan. Private
contract cannot, of course, upset the law, and the Board is not required to give
effect to private adjustment of disputes involving the operation of the statute
where contrary to sound public policy. But, though the Board cannot be deprived
by private arrangement of jurisdiction to remedy unfair labor practices, it has,
as a matter of policy in certain cases, recognized the arbitration of issues under
contractual machinery and as a consequence has declined to find violations.
2 The proviso .to Section 8 (a) (3) involved states that , other declared conditions being
satisfied , nothing in any statute of the United States shall "preclude an employer from`
making an agreement with -[ an appropriate labor organization ] . . to require as a con-
dition of employment membership therein on or after the thirtieth day following the be-
gtnming of such employment or the effective date of such agreement , whichever is the
later . . . ." [ Emphasis supplied .],
986209-52-vol. 97-35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See, for example, Timken Roller Beaming Co., 70 NLRB 500; Paramount Pictures,
Inc., 79 NLRB 557. The availability of a-contractual mechanism for the ad-
justment of industrial disputes has also been stated by the Board to be a ground
for withholding the exercise of jurisdiction. Consolidated Aircraft Corp., 4T
NLRB 694; cf. Combustion Engineervng Company, Inc., 86 NLRB 1264.
In view of those cases, it would appear that the result of arbitration pursuant
to contract may or ought in the ordinary circumstance to be recognized where
the proceedings are regular and fair, within the scope of the contract, all parties
agree to be fully and finally bound by the result, the judgment is not arbitrary,
and recognition of it will not be incompatible with the basic purposes and
policies of the Act.
In the instant case McClellan bound himself, as he in fact testified, to accept
the decision of the Board of arbitration as a final and conclusive disposition of
the entire issue. The stipulation was not confined to the mere question as to
the proper construction of the contract. There was no reservation of his right
to pursue his remedy under the National Labor Relations Act, whatever the
arbitration decision. The submission was voluntary and complete, with the
advice and assistance of legal counsel. Under such circumstances I think the
purposes of the Act will be best effectuated by declining to go behind the arbi-
tration award This is not to assert that the award was necessarily correct,
or that I would have found the same way. To require accuracy of the final
judgment as the condition of recognition of the award is to reduce the recog-
nition to a semantic. Here the proceedings were regular and fair, the decision
reasoned, and the result not incompatible with the purposes of the statute. I
am therefore constrained to recognize it.
The sole remaining question then is whether McClellan complied with the
award. If he did not, the complaint with respect to him should be dismissed.
I find, however, that he did comply.
The award directed the Union and the Company to accept compliance by
McClellan as dispositive of the case. The terms of compliance were stated in
paragraph number 3 of the award, as follows :
3. Messrs. McClellan and Smith are hereby apprised that they must,
within thirty days after the date of this Award, pay their respective dues'
arrearages, together with any re-instatement fee provided for in the Con-
stitution and/or By-laws of the Union, and pay their respective Union dues
for the month next following the date of this Award and for the months
succeeding during which the "maintenance of membership" clause remains
in force and effect, or be subject to discharge by the Company, under the
terms and conditions of Article 2 of the Contract. Such payment of dues'
arrearages and of the re-instatement fee may be made personally or by
authorizing the Company to remit to the Union any sums which the Com-
pany may have withheld from the wages of either Mr. McClellan or Mr.
Smith, as the case may be, and "impounded," pending the outcome of this
dispute. [Emphasis here supplied.] Such payment of current Union dues
may be made either personally or by executing a payroll deduction
authorization.
The award was issued on July 20 , 1949. The direction above quoted plainly-
stated that authorization by McClellan to the Company , within 30 days, to
"remit to the Union any sums . . . withheld from ... wages . and 'im-
pounded' should constitute "payment of dues , arrearages and of the reinstate-
ment fee."' I construe that direction as providing, not the procedure by which.
' In fact no reinstatement fee was required by the Union.
MONSANTO CHEMICAL COMPANY 535
arrearages and reinstatement fees could be defrayed (which would be a point-
less provision), but what should •consttitute payment of arrearages and fees.
When, therefore, within 30 days after the award, McClellan authorized the
remittance of his impounded dues he fully met his dues arrearages under the
award. On August 25, 1949, his only remaining financial obligation to the
Union was for August dues, and as to these he was not in bad standing. The
Union's constitution provides that a member is not in bad standing until 2
months in arrears in dues. The award is not to be construed as depriving
McClellan of the rights conferred by the constitution.
There remains for consideration the question whether there is, as contended
by the Respondents, any Section 10 (b) problem raised by the contracts. It
will be noted that if any unfair labor practices occurred by reason of the fact
of execution or maintenance of the union-security clauses in the 1948 and 1949
contracts, such practices occurred during the first 30 days of existence of each
contract, and presumably did not continue thereafter. If, therefore, findings
of unfair practices were requested by the General Counsel on the basis of the
existence, execution, or maintenance of the 1948 contract, Section 10 (b) might
be applicable, since the initial charges were filed more than 6 months after
(presumably) any such unfair practices occurred. However, it has been seen
that the complaint does not allege any such kind of unfair labor practice by
reason of the 1948 contract, but merely that at the time of McClellan's discharge
there was not in existence any agreement validly requiring membership in the
Union as a condition of employment. And while the security clause in the 1949
contract is specifically attacked as unlawful, charges sufficient-under the
doctrine of Cathef Lumber Co., 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5) ;
and Morristown Knitting Mills, 80 NLRB 731-to support that attack were
timely filed. No finding of unfair practices in the existence, execution, or main-
tenance of the 1948 contract is necessary to a finding of unfair practices in
the discharge of McClellan. Section 8 (a) (3) effectively forbids discharge for
nonmembership in good standing in a union unless protected by an agreement
conforming to its requirements. Since the Board has held that clauses like
that contained in the 1948 agreement do not so conform, it follows that the
discharge was discriminatory, and that no Section 10 (b) question is presented.
Cf. Axelson Mfg. Co., 88 NLRB 761; Crowley's Milk Company, Inc., 88 NLRB
1049; Florida Telephone Corporation, 88 NLRB 1429; El Mundo, Inc., 92 NLRB
724; N. L. R. B. v. Luzerne Tallow Co., 188 F. 2d 439 (C. A. 3) ; U. S. Rubber
Company, 93 NLRB 1485.
It is consequently found that McClellan fully complied with the relevant por-
tions of the award, and that the Union by causing his discharge, and the Company
by discharging him on August 25, 1949, violated, respectively, Section 8 (b) (1)
(A) and (2) and8 (a) (1) and (3) of the Act`
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. The activities of the Company and the Union set forth in Section III, above oc-
curring in connection with the operations of the Company described in Section I,
* The General Counsel and McClellan also contend that the $12 payment was compliance
for another reason . The Union has a rule of many years ' standing, either excusing a
member from payment of dues or reimbursing him after payment and upon demand (which
is a fact that is disputed ) for dues during any month in which he is unable , due to illness
or injury , to work as much as one full week. McClellan's absences due to injury have
been detailed heretofore. Deducting for his injury absences , McClellan owed at the maxi-
mum $12 dues , even if his August 1949 dues are included . The Union asserts, among
other contentions , that the rule requires payment and then application for refund . Having
found that McClellan complied with the award for other reasons, it is unnecessary to
decide the case on the basis of which is the more appropriate bookkeeping procedure.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 unfair labor
practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the Act.
As to McClellan, it will be recommended that the Union notify the Company
and McClellan, in writing, that it has no objection to his employment by the
Company without discrimination because of his nonmembership in good stand-
ing in the Union. As to the Company it will be recommended that it reinstate
McClellan to his former or substantially equivalent position without prejudice
to his seniority or other former rights and privileges. It will be recommended
that the Company and the Union, jointly and severally, make McClellan whole
for any loss of pay incurred by reason of the discrimination against him. Exact
computations shall be in accordance with the Board's usual policies. (F. W.
Woolworth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.) The Union may terminate further, accrual
of back pay by notifying the Company that it has no objection to, and permit-
ting, McClellan's employment on a nondiscriminatory basis; the Company by
employing McClellan nondiscriminatorily.
Since the existing collective bargaining contract, dated October 15, 1949, and
subsequently extended, contains an invalid union-security clause, it will be
recommended that the parties be ordered to remove this clause from their agree-
ment and to cease giving effect to it.'
It will also be recommended that the Company be directed, upon reasonable
request, to make all pertinent records available to the Board and its agents to
expedite compliance. I
[Recommended Order omitted from publication in this volume.]
5 The General Counsel has not requested in his brief, and I assume for adequate reason,
that the remedy for the contract illegality be any broader than removal of the invalid
clause. Cf. Julius Resnick, Inc., 86 NLRB 38; Salant & Sakent, 87 NLRB 215; and Strauss
,stores, 94 NLRB 565.
CHARLES A. KRAUSE MILLING Co. and LOCAL No. 9, INTERNATIONAL
UNION OF BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY
WORKERS, CIO, PETITIONER. Case No. 13-RC-1928. December 13,
1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Herman J. DeKoven,
97 NLRB No. 75.
Y