United Automobile, Aircraft and Agricultural Implement Workers of America

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1419 (N.L.R.B. 1952)

LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1419
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO
and RICHARD STACKER, ET AL. Case No. 2-CB-514. June 30, 1952
Decision and Order
On October 24, 1951, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
On May 6, 1952, the Board heard oral argument at Washington,
D. C., in which the Respondent and the General Counsel participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in,the case, and,hereby adopts ,the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications and ex-
ceptions noted below.
1. We agree with the Trial Examiner that the $15 initiation fee
the Respondent imposed on employees with more than a year's serv-
ice, as compared with the $5 fee required of employees with less serv-
ice, was "discriminatory under all the circumstances" within the.
meaning of Section 8 (b) (5) of the Act.' Although the Respondent,
in its exceptions, asserted that the Trial Examiner failed "to give
sufficient weight to the disparate benefits received by those who are re-
quired to pay different initiation fees," the record contains no evidence
as to what, if any, different or additional benefits were enjoyed by those
employees charged the higher fee or how such differences in benefits
make reasonable a classification which on its face has every appear-
ance of being discriminatory. Indeed, two officials of the Respond-
ent testified that the system of dual fees was designed to induce
employees to become members sooner. In these circumstances, the
1 Section 8 ( b) (5) makes it an unfair labor practice for a labor organization
to require of employees covered by an agreement authorized under subsection (a) (3)
the payment , as a condition precedent to becoming a member of such organization, of a
fee in an amount which the Board finds excessive or discriminatory under all the
circumstances . In making such a finding , the Board shall consider , among other
relevant factors , the practices and customs of labor organizations in the particular
industry, and the wages currently paid to the employees affected.
As the validity of the union -shop contract is not questioned , we find it unnecessary to
determine the correctness of the Trial Examiner ' s dictum that Section 8 (b) (5) would be
applicable even if the contract were invalid.
99 NLRB No. 166.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference is warranted that the larger fee was imposed because the
employees against whom it was assessed had exercised their statutory
right, under the amended Act, to refrain from joining the Respondent
earlier. The principle of the Ferro case 2 is therefore applicable.
The Respondent also contends that the phrase in Section 8 (b) (5),
"discriminatory under all the circumstances" means "excessive," al-
though that section specifically prohibits fees found to be "excessive
or discriminatory under all the circumstances." [Emphasis added.]
As no evidence relating to excessiveness was adduced, the Respondent
apparently concludes that no violation was established.
We cannot subscribe to the Respondent's proposed interpretation
of the Act. To read the phrase "discriminatory under all the cir-
cumstances" as "excessive" would not only deny the plain meaning of
the words of the statute, but would be imputing to Congress a purpose-
less choice of language. For this reason, the Board in the Ferro case
found disparate fees to be discriminatory within the meaning of Sec-
tion 8 (b) (5), even though it was conceded that the larger fee was not
excessive.
The Respondent also contends that, in determining whether an
initiation fee is discriminatory, Section 8 (b) (5) requires the Board to
consider "among other relevant factors, the practices and customs of
labor organizations in the particular industry" and that, as the
Respondent had maintained a differential in initiation fees since long
before it signed the union-shop contract, the disparate fees could not
be found to be discriminatory under all the circumstances. The record
discloses that for some period between September 24, 1948, and Sep-
tember 10, 1950, the Respondent's bylaws prescribed a $2 initiation
fee for employees who joined the Respondent within 7 days after
completing their probationary period of employment and $5 for
employees who joined after that period. Thereafter the Respondent
required the dual fees involved herein.
While we agree with the Trial Examiner that the Respondent's
past practices set forth above do not determine the validity of 'the
disparate initiation fees under consideration here, we do not adopt his
finding that the above quoted portion of Section 8 (b) (5) applies only
to the prohibition in that section against excessive initiation fees.3
2 Ferro Stamping and Manufacturing Co., 93 NLRB 1459, where the Board held that a
union violated Section 8 (b) (5) by charging the old employees a higher initiation fee than
the new employees because they failed to join the union before the effective date of the
union-shop contract.
$ Chairman Herzog and Member Houston believe that , whether or not Congress intended
the Board to give any consideration to practice and custom in cases involving alleged
discriminatory admission fees, Congress at least intended by the use of the term "dis-
criminatory" to prohibit a classification of fees based on an employee ' s prior exercise of his
statutory right "to refrain" from membership in a labor organization . Ferro Stamping
and Manufacturing Co, supra ; see also their dissenting opinion in Food Machinery and
Chemiod1'Corporati6n, ' 99'NLRB No. 167.
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1421
We are persuaded that Congress intended the Board to examine alleged
violations of this section of the Act on a case-to-case basis and in each
case to decide whether "under all the circumstances," with due con-
sideration for such "practices and customs," the initiation fees required
were either excessive or discriminatory. Nor does it follow, as the
Trial Examiner suggests, that this interpretation would mean the
exoneration of unlawful conduct because of long-established practice.
The term "discrimination" as used in this context is a general term,
involving such flexible concepts as reasonableness and motivation as
well as disparate treatment. Obviously, a union's past practice and
customs were not intended by Congress to be controlling considera-
tions. But Congress specifically provided that they were to be con-
sidered. In the instant case the Respondent's past practices were
substantially different from those involved here. We have, never-
theless, considered those practices and find, under all the circum-
stances, that the present practices of the Respondent for the reasons
set forth above and in the Intermediate Report are discriminatory
within the meaning of Section 8 (b) (5).
2. We also agree with the Trial Examiner that, by imposing the
distr-iminatory initiation fee, the Respondent restrained and coerced
employees in the exercise of their statutory rights within the meaning
of Section 8 (b) (1) (A) of the Act. This result necessarily follows
from the fact that employees with more than a year's service were
required to pay the discriminatory fee in order to secure membership,
or suffer discharge under the contract.
The Respondent contends that the proviso to Section 8 (b) (1)
(A)4 guarantees to labor organizations the right to make their own
membership rules and that therefore it could not be found guilty of
violating that section. However, although the proviso preserves the
right of a union to prescribe its own rules with respect to the "acquisi-
tion or retention of membership therein," it does not sanction the
imposition of discriminatory conditions of employment which, as here,
otherwise violate the Act.-,
5. Finally, we adopt the Trial Examiner's recommended remedy
that the Respondent be directed to refund $10, the amount of the
discriminatory overcharge,6 to those employees who were obliged to
pay the $15 fee because they had more than a year's service before the
expiration of the 30-day grace period. However, unlike the Trial
* Section 8 (b) (1) (A ) provides that a labor organization shall not "restrain or coerce
. . . employees in the exercise of the rights guaranteed in section 7: Provided, That
this paragraph shall not impair the right of a labor organization to prescribe its own rules
with respect to the acquisition or retention of membership therein."
P Cf Consolidated Western Steel Corporation , 94 NLRB 1590; Utah Construction. Co., 95
NLRB 196.
8 See Ferro Stamping and Manufacturing Co., supra.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, we see no reason for excluding from the group of employees
entitled to reimbursement those employees, if any, who belonged to the
$5 class and defaulted in the payment of this fee during the 30-day
grace period and thereafter were required to pay $15 because they then
had more than a year's service. It is clear that the employment service
of such employees would cover, as it did in the case of the other
employees entitled to reimbursement, a period of time when they also
were free to refrain from joining the Respondent, and that therefore
they too were being penaiized for exercising this right.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Local 153, International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-CIO, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Requiring employees of Bendix Aviation Corporation at Teter-
boro, New Jersey, its successors or assigns, who are covered by an
agreement authorized by Section 8 (a) (3) of the Act, to pay dis-
criminatory initiation fees as a condition precedent to becoming mem-
bers of the Union.
(b) Restraining and coercing the afore-mentioned employees in
the exercise of their rights guaranteed in Section 7 of the Act except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3), of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Submit to the General Counsel the names of all employees who
have paid an initiation fee of $15 under its union-shop contract,,with.
the aforesaid Company.
(b) Refund $10 to each of the employees described in the section of
the Intermediate Report herein entitled "The Remedy," as amended
by the Board's decision, for the discriminatory overcharge of initia-
tion fees paid by them.
(c) Post at its business office at Hasbrouck, New Jersey, copies of
the notice attached to the Intermediate Report as an Appendix.?
7 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner " in the caption thereof, the words "A Decision and Order ." In the event
that this Order is enforced by a decree of a United States Court of Appeals , there shall be
substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1423
Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by an official repre-
sentative of the Respondent, be posted by it immediately upon receipt
thereof and be maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for the Second Region signed
copies of the amended notice attached to the Intermediate Report as
an Appendix, for posting, if the Company is willing, at the Bendix
Aviation Corporation plant, Teterboro, New Jersey, in all places
where notices to employees are customarily posted.
(e) Notify the Regional Director for the Second Region in writing,
-within ten (10) days from the date of this Order as to what steps the
Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Richard Stacker, et al.,
individuals , the General Counsel for the National Labor Relations Board by
the Regional Director for the Second Region (New York, New York), issued a
complaint dated May 28, 1951, against Local 153, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, UAW-
CIO, herein called the Respondent Union. The complaint alleges that the
Respondent violated Section 8 (b) (1) (A) and 8 (b) (5) of the Labor Manage-
ment Relations Act, 1947, 61 Stat. 136, herein called the Act, respecting em-
ployees of Bendix Aviation Corporation at Teterboro, New Jersey. Copies of the
complaint and charges were duly served upon the Respondent . The Respondent
filed an answer denying that it had committed the unfair labor practices described
in the complaint.
Pursuant to notice, a hearing was held at New York, New York, in July and
September 1951, before the undersigned Trial Examiner . The General Counsel
and the Respondent were represented by counsel and all parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
The parties were granted opportunity to present oral argument before the
Trial Examiner and they were also granted permission to file briefs and pro-
posed findings of fact and conclusions of law . The Respondent has filed a
brief which has been considered.
Upon the entire record in the case , and upon his observation of the demeanor
of witnesses , the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Bendix Aviation Corporation, herein called the Company, is a Delaware corpo-
ration maintaining plants in various States including a plant at Teterboro,
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Jersey, where it is engaged in the manufacture, sale, and distribution of
aircraft instruments and accessories. In 1950, the Company purchased materials
valued in excess of $250,000 for its Teterboro plant of which approximately 50
percent was transported in interstate commerce ; during the same period, the
Company's production at Teterboro exceeded $250,000 of which more than 10
percent was shipped in interstate commerce.
I find that the Company is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION ,INVOLVED
The Respondent is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The principal question in this case is whether the Union violated Section 8
(b) (1) (A) and 8 (b) (5)' of the Act by charging disparate initiation fees under
the circumstances set forth below.
The Union and the Company have been in contractual relationship for several
years during which the Company has recognized the Union as the exclusive
bargaining representative for an appropriate unit including the employees in-
volved in this proceeding. On September 24, 1948, following an election under
Section 9 (e) (1) of the Act, the Regional Director for the Second Region
certified the Union as authorized to make, a union-shop agreement, as described
in the first proviso to Section 8 (a) (3)-of the Act, for this unit of employees.
The current agreement between the Union and the Company, which was
executed for a 5-year term in July 1950 and ratified the following month, contains
a union-shop provision to the effect that after 30 days (the period required
by the first proviso to section 8 (a) (3) of the Act) employees shall "become
and remain members of the Union as a condition of continued employment."
The contract preceding the current one, however, contained only a maintenance-
of-union-membership provision insofar as union security is concerned.
During the operation of the earlier contract and until September 10, 1950,
the union bylaws prescribed the following schedule of initiation fees : $2 for
those who join the Union within 7 days after completing a probationary period
of employment with the Company and $5 for those who joined after this 7-day
period. On September 10, 1950, the Union amended its bylaws to require an
initiation fee of $5 for those employees having less than 1 year's service with the
Company and a fee of $15 for those who join the Union after 1 year's service.
On August 29, 1950, after the effective date of the present contract, the Com-
pany advised its employees that in accordance with the union-shop agreement
they must'become members of the Union on'or before September 14, 1950, which
was the final day of the afore-mentioned 30-day period. Employees having more
than 1 year's service thereupon paid the $15 initiation fee in order to satisfy
this union-shop condition of their continued employment. While the record does
not show whether all employees with more than 1 year's service paid this $15
fee at the time, it does appear that no discharges have been made or requested
by the Union for any such employee's failure to pay the $15 fee.
,Section 8 (b) (5) provides that "it shall be an unfair labor practice for a labor organ-
ization or its agents-to require of employees covered by an agreement authorized under
subsection ( a) (3) the payment , as a condition precedent to becoming a member of such
organization , of a fee in an amount which the Board finds excessive or discriminatory
under all the circumstances . In making such a finding, the Board shall consider, among
other relevant factors, the practices and customs of labor organizations in the particular
industry, and the wages currently paid to the employees affected."
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1425
The General Counsel claims that the Union has discriminated against those
employees who were required to pay the $15, rather than the $5, initiation fee
sin September 10, 1950. Apart from this disparity, no claim is made that the
increase in fees constitutes a violation of the Act.
Conclusions
The question for decision is whether Section 8 (b) (5) and Section 8 (b) (1)
(A) of the Act forbid a union with a union-shop contract' from predicating its
initiation fees upon the length of an employee's service in a situation where
there was no union-shop requirement while that service was accumulated.
A similar issue was before the Board in Ferro Stamping and Manufacturing
Co., 93 NLRB 1459. There the Board held that disparate initiation fees violated
Section 8 ( b) (5) of the Act where, during the operative term of a union-shop
agreement, the disparity was based on an employee's prior failure to join a
labor organization at a time when there was no lawful compulsion to do so.
The Board concluded in that case that "a distinction in initiation fees which is
based on a prior exercise by an employee of his statutory right to refrain from
joining a labor organization is plainly `discriminatory under all the circum-
stances' within the meaning of Section 8 (b) (5)." And in New York Ship-
building Corporation, 86 NLRB 1446, 1447, and The Eclipse Lumber Company,
Inc., 95 NLRB 464, the Board found discrimination under 8 (b) (2) and 8 (b)
(1) (A) allegations where unions invoked a union-shop agreement to cause the
discharge of employees for their failure to pay membership dues for periods
during which no union-shop agreement existed and when, therefore, the em-
ployees in question "could not lawfully be required to pay such dues as a con-
dition of continued employment."
Thus it is clear that union-shop agreements may not be applied retroactively
and, therefore, that a union-shop agreement does not permit a union to reach
back into a period uncovered by such agreement in determining the amount of
initiation fees under the contract. To charge some employees a $15 initiation
fee as a condition of employment under the present union-shop contract, while
charging others $5, merely because the employees in the former group have not
joined the Union for more than 1 year's employment, is to penalize these em-
ployees for exercising their right under Section 7 of the Act to refrain from union
membership in the absence of a valid contract requiring such membership. This
does not mean, of course, that differences in the amount of initiation fees or
dues may not be permitted during the term of a union-shop agreement ; but such
differences to be lawful must be based on "reasonable general classifications"
unrelated to the exercise of rights protected under the Act. The Electric Auto-
Lite Company, 92 NLRB 1073.
The Respondent contends, however, that disparate initiation fees based on
employment longevity have been the established practice among the employees
2 The CIO, with which the Respondent was affiliated at the time of the afore-mentioned
union-authorization election, as it still is, was not then in compliance with the filing and
affidavit requirements of Section 9 (f), (g), and (h) of the Act. Consequently the certifica-
tion thereupon issued to the Respondent was then ineffective to permit the Respondent to
enter into the union -shop agreement under consideration here. See N . L. R. B. v. Highland
Park Manufacturing Company, 71 S. Ct. 758 . During this proceeding , however, the General
Counsel contended that Section 8 (b) (5) applies to situations involving discriminatory
Initiation fees whenever an operative agreement requires membership in a union as a condi-
tion of employment, whether or not such contract be valid under Section 8 (a) (3) of the
Act. Although I would accept this contention , it is unnecessary to resolve the Issue in this
case In view of the fact that the CIO is now in compliance and because the recent amend-
ment to the Act removes the disability of the CIO's noncompliance at the time the election
-was held and certification issued. See S. 1959 , Sec. 18 , 82nd Cong ., 1st Sess.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this plant and, therefore, that this circumstance justifies its legality in view
of the statutory language set forth above to the effect that the resolution of
8 (b) (5) allegations must take into account, among other things, "the prac-
tices and customs of labor organizations in the particular industry." This
quoted portion of Section 8 (b) (5) would seem to apply only to the prohibition
in that section against excessive initiation fees ; for obviously Congress did not
intend to exonerate otherwise unlawful conduct merely because such practices
were long established. I find, therefore, that whatever the past practices, they
do not determine the validity of the disparate initiation fees under considera-
tion here.
The Respondent further contends that the proviso clause of Section 8 (b) (1)
(A) clearly permits a labor organization to prescribe its own rules with respect
to the "acquisition or retention of membership" and that nothing in Section
8 (b) (1) (A) can serve to violate this right. It is true that in enacting the
1947 amendments to the Act, Congress eschewed "elaborate policing of the in-
ternal affairs of unions" and that it therefore rejected that portion of H. R. 3020,
80th Cong., 1st Sess., which would have involved such governmental surveil-
lance;' however, it is also manifestly clear from the wording of the statute
itself (for example, Section 8 (b) (5), 8 (b) (2), 7, and the second proviso to
Section 8 (a) (3)) and from other indicia of legislative design that Congress
did not intend to permit unions enjoying union-shop contracts to charge initia-
tion fees which are either excessive or discriminatory.` Labor organizations,
therefore, may indeed prescribe their own internal rules respecting member-
ship ; but if they would have union-shop provisions they must do without benefit
of discriminatory initiation fees from the employees affected See, also, S. Rep.
No. 105, p. 7, 80th Con,, 1st Sess
The suggestion was made by Respondent's counsel at the hearing that the
disparity in initiation fees was justified because of the benefits bestowed on the
older nonunion members during the Union's incumbency as bargaining repre-
sentative, but while no union-shop agreement prevailed, for which benefits these
nonunion employees paid no share of the financial burden incurred by the Union
during such period. Whatever merit there may be in this argument, one must
not overlook the fact that it is a statute we are administering and that the Act
prescribes the conditions under which, and only under which, the burdens of
representation may be validly distributed.
Upon all the foregoing, I conclude that by promulgating the disparate initia-
tion fees and by charging some employees an initiation fee of $15 during the
term of the union-shop contract because they failed to join the Union before
the effective date of the contract, while charging other employees only $5, the
Respondent has violated Section 8 (b) (5) of the Act.'
It appears, therefore, that the Respondent Union has penalized certain of the
employees because they exercised their statutory right not to join the Union
in the absence of a valid contract requiring such membership. And it also
appears that by reason of the present union-shop contract these employees
were obligated either to pay the discriminatory fee or to suffer discharge under
the contract. The imposition of discriminatory initiation fees as a condition
of employment is no less restraining and coercive of employees in the exercise
of their right not to join unions and not to be penalized for exercising such
8 See 93 Cong. Rec. 6601, 7001.
4 H Rep. No. 510, 80th Cong., 1st Sess., pp . 41, 45; 93 Cong. Rec. 6601, 7001.
5 Officers of the Union testified that the reason for the disparate fees was to induce
employees to join the Union earlier rather than later. This testimony is in effect another
manner of describing the violation.
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1427
right than the restraint and coercion incurred by employees who are subjected
to other discriminatory conditions of employment. As the Board has found
that the promulgation and imposition of illegal conditions is violative of Section
8 (b) (1) (A) of the Act,` I further conclude that by promulgating and thereby
imposing the discriminatory initiation fees as a condition of union membership
(and therefore of employment) the Respondent also has violated Section 8 (b)
(1) (A) of the Act. It is, of course, no defense that the Respondent may not
have sought the discharge of any employees for failing to pay the $15 initiation
fee. ' For, without anything more, the requirement of a discriminatory fee as a
condition of union membership is, in the context of a union-shop agreement,
itself restraining and coercive of employees within the meaning of the Act.'
Scope of Violation and Further Conclusions
The parties agreed at the hearing to treat as a compliance matter the identity
of those employees who paid the $15 initiation fee ; and in this connection
the Respondent agreed to submit to the General Counsel at the compliance stage
the names of the affected employees. Some employees paid the $15 fee before
September 14, 1950, the end of the 30-day free period required by the first proviso
to Section 8 (a) (3) of the Act. However, the record does not show that all
employees with more than 1 year's employment had paid their fees by that time
or that some such employees did not pay their fees after that date. This situa-
tion raises a question which was not specifically litigated at the hearing but
which I must resolve at least as it affects the remedy and order to be recom-
mended and, indeed, the scope of the violation as well : namely, as to which classes
of employees was the $15 fee discriminatory?
To analyze this issue I shall posit several situations under the present con-
tract, mindful, of course, that a union may lawfully cause the discharge of
employees covered by a valid union-shop agreement upon the employees' failure
to make a timely tender of dues and initiation fees, uniformly and nondiscrimi-
natorily required, within the statutory 30-day period. Chisholm-Ryder Com-
pany, Inc., 94 NLRB 508. Cf. Pen and Pencil Workers Union, 91 NLRB 883.
First, there is employee A with less than 1 year's service accumulated at
the end of the 30-day period, who fails to tender the $5 initiation fee during the
30-day period. A is in default under the contract and subject to discharge for
that reason.
Next is the case of employee B, who has more than 1 year's employment when,
during the 30-day period, he tenders the $15 initiation fee the union requires
of him. The schedule of fees is discriminatory as to this class of employee
under the Ferro Stamping case and, as explained above, the requirement of the
$15 fee constitutes a penalty for B's failure to join the Union for more than a
year before the final day of the statutory 30-day period under the contract.
Thirdly, there is the case of employee C with more than 1 year's service
accumulated before the end of the 30-day period, who makes no tender of any
fee during the 30-day period. C, like A, is in default and subject to valid dis-
charge under the Act unless it may be said that he was under no obligation to
9 Eclipse Lumber Company , Inc, 95 NLRB 464; International Brotherhood of Teamsters,
Chauffeurs, Warehousemen d Helpers of America, etc ., 94 NLRB 1494 ; International
Brotherhood of Boilermakers, Iron Ship Builders, Welders, and Helpers of America, etc,
94 NLRB 1590; Electric Auto-Litc Company, 92 NLRB 1073; Childs Company, 93 NLRB
281; Clara-Val Packing Co, 87 NLRB 703
'Cf. Newark Newsdealers Supply Company , 94 NLRB 1667; International Brother-
hood of Boilermakers, Iron Ship Builders, Welders and Helpers of America , etc., 94 NLRB
1590 ; Childs Company, 93 NLRB 281 ; Julius Resnick, Inc., 86 NLRB 38, 40.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make a tender of $5 during the 30-day period in view of the fact that the Union
required a fee of $15 from him at that time. But the tender of any amount
less than $15 would have been a futile gesture during the 30-day period which
he was not obliged to make.' And I find, as in the case of B, that C was not
then or thereafter required to tender $15 and thereby submit to a discriminatory
condition in order to continue his employment. Ferro Stamping and Manu-
facturing Co., supra.
Lastly, there is employee D with less than 1 year's service at the end of the
30-day period who does not tender the $5 fee during the 30-day period. D, like
A, is in default and subject to discharge. However, D completes 1 year's
longevity after the period and the Union then requires him to pay the $15 fee
because of his year's service. 'The question as to D is whether the Union may
impose the greater initiation fee, based on employment longevity, in the case
of an employee subject to discharge for defaulting in respect to a valid condition
of employment, namely, the timely tender of initiation fees under a union-shop
contract. Unlike the case of B which I have found to be unlawful under the
Act, D would be required either to pay the $15 fee or to suffer discharge not
because he failed to join the Union at a period during which there was not a
union-shop contract, but because he failed to join the Union at a time (during
the 30-day period) when he was lawfully obliged to do so. I do not believe
that D may assert infringement of rights under Section 8 (b) (5) or Section
8 (b) (1) (A) merely upon a showing that the Union does not invoke the con-
tract against him to cause his discharge, as it is entitled to do, but rather per-
mits him the alternative, which it is not obliged to do, of continuing in the
Company's employ upon payment of the $15 fee. The use of employment
longevity to determine the amount of an initiation fee during the 30-day period
as in B's case is entirely different from its application after such period, at
a time when the affected employees are subject to discharge within the context
of D's situation. It may be that a so-called initiation fee imposed on an em-
ployee in default who is subject to lawful discharge, is not an "initiation fee"
at all within the meaning of the Act a In any event, I find no illegality in the
$15 requirement in the case of D, whether or not such financial condition be
an "initiation fee" within the meaning of the Act.
I conclude, therefore, that the disparate initiation fees were and are dis-
criminatory and restraining and coercive only as to those employees who were
obliged to pay the $15 fee during the afore-mentioned 30-day period, whether
or not the individual employees actually paid the fee at the time.
IV. TILE EFFECT ON THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III hereof, occurring
in connection with the operations of the Respondent described in Section I
hereof, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
8 See Westinghouse Electric Corporation, 96 NLRB 522; The Eclipse Lumber Com-
pany, Inc., 95 NLRB 464.
9 Suppose, for example, that the Union advised- D either to pay the $15 fee or be dis-
charged and that the Union then invokes the contract against D upon D's failure to pay
the $15 fee. Would the discharge violate Section 8 (b) (2) of the Act? I believe not.
D's default under the contract would seem a complete defense to such complaint and the
Union's offer permitting D, upon payment of $15, to be restored to good standing as an
employee under the union-shop contract would, in my opinion, be an irrelevant consid-
eration.
LOCAL 153, INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1429
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor
practices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
I shall recommend that the Respondent submit to the General Counsel the
names of all employees of the Company who have paid a $15 initiation fee under
the present union-shop contract and that the Respondent refund $10, the amount
of the discriminatory overcharge, to each such employee who had accumulated
more than 1 year's service with the Company on or before September 14, 1950,
the last day of the 30-day statutory period under the contract.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS, or LAW
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 ( b) (5) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE TO ALL MEMBERS or LOCAL 153, INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
UAW-CIO
Pursuant to the recommendations of a Trial Examiner 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 require the employees of BENDIx AVIATION CORPORATION, who
are covered by an agreement authorized by Section 8 (a) (3) of the Act,
to pay discriminatory initiation fees as a condition precedent to becoming
a member of our union.
WE WILL NOT restrain or coerce BENDIX employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section 8 (a)
(3) of the Act.
WE WILL refund $10 to all employees of BENDIX for any discriminatory
overcharge in the payment of a $15 initiation fee.
LOCAL 153 , INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW-CIO,
Labor Organization.
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.
215233-53-91