Bayly Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1953

103 N.L.R.B. 1337 (N.L.R.B. 1953)

BAYLY MANUFACTURING COMPANY 1337
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices may be anticipated. The remedy
should be coextensive with this threat. I shall, therefore, recommend that
Respondents cease and desist from in any manner infringing upon the rights
of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. United Shoe Workers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. Lunder Shoe Corporation d/b/a Bruce Shoe Company and Bruce Shoe
Company, Inc., are engaged in commerce within the meaning of the Act.
3. All production and maintenance employees of Respondents employed at the
Biddeford plant, exclusive of executives , foremen, salesmen , office and clerical
employees , part-time employees, watchmen , professional employees , and all super-
visors as defined in Section 2 (11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
4. United Shoe Workers of America , CIO, was on October 19 , 1950, and at all
times since has been the exclusive representative of all employees in the afore-
said appropriate unit for the purposes of collective bargaining within the mean-
ing of Section 9 ( a) of the Act. Respondent Lunder Shoe Corporation d/b/a
Bruce Shoe Company from October 11 , 1951 , and thereafter , and Respondent
Bruce Shoe Company , Inc., from July 22, 1952 , and at all times thereafter, by
refusing to bargain collectively with United Shoe Workers of America , CIO, have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By interfering with , restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices within the meaning
of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
BAYLY MANUFACTURING COMPANY and UNITED GARMENT WORKERS OF
AMERICA, AFL
Los ANGELES JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF
AMERICA, CIO and UNITED GARMENT WORKERS OF AMERICA, AFL.
Cases Nos. 01-CA-1309 and 21-CB-399. March 31, 1953
Decision and Order
On October 20, 1952 , Trial Examiner Irving Rogosin issued his
Intermediate Report in the above -entitled proceedings, consolidated
for hearing, finding that the Respondents had engaged in certain
103 NLRB No. 140.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action as set forth in the
copy of the Intermediate Report attached thereto. Thereafter the
Respondent Company and the Respondent Union filed exceptions to
the Intermediate Report; the General Counsel filed no exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
The complaint alleges, inter alia, that the Respondent Union violated
Section 8 (b) (1) (A) and 8 (b) (2) and the Respondent Company
violated Section 8 (a) (1), (2), and (3), by requiring employees to
sign authorizations permitting the deduction of dues, initiation fees,
and assessments from their compensation. The record shows that both
Respondents did require, as a condition of employment, that employees
sign such authorizations. The Trial Examiner found that the Re-
spondent Company thereby violated Section 8 (a) (1) and (2) and
the Respondent Union violated Section 8 (b) (1) (A) and (2)
It does not appear from the record that the Union expressly de-
manded that the Employer exert pressure on the employees to sign
the checkoff authorizations. Nevertheless it is clear that both the
Respondent Union and the Respondent Company told employees that
signing a checkoff authorization was a condition of employment and
that employees signed the authorizations under those conditions. We
believe it to be clear that the Union thereby attempted to cause and
did in fact cause the Employer to discriminate in regard to hire or
tenure of employment to encourage membership in the Union. Ac-
cordingly we adopt the findings of the Trial Examiner that, by requir-
ing the employees to sign checkoff authorizations as a condition of
employment, the Respondent Union violated Section 8 (b) (1) (A)
and (2) and the Respondent Company violated Section 8 (a) (1) and
(2). We make no express finding that the Respondent Company
thereby also violated Section 8 (a) (3), because no exception was taken
to the failure of the Trial Examiner so to find .s
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Murdock]
3 As no reason appears for the Trial Examiner 's omitting to find that the Respondent
Employer violated Section 8 ( a) (3) by this conduct, we assume that such omission was
inadvertent.
3In adopting the findings of the Trial Examiner discussed above, we do not adopt his
parenthetical remarks that , in his opinion , the checkoff authorizations themselves failed
to conform to Section 302 of the Act. As the Trial Examiner himself points out, the
Board said in Salant & Salant, Inc., 88 NLRB 816, that the question whether a checkoff
provision exceeds the limitations of Section 302 Is not to be considered in determining
BAYLY MANUFACTURING COMPANY 1339
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. Respondent Company, Bayly Manufacturing Company, Long
Beach, California, its officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Entering into, renewing, or enforcing any collective-bargaining
agreement with Respondent Union, Los Angeles Joint Board, Amal-
gamated Clothing Workers of America, CIO, or with any other labor
organization, which requires its employees to acquire or maintain
membership in such labor organization as a condition of employment,
unless such agreement shall have been authorized as provided in Sec-
tion 8 (a) (3) of the Act.
(b) Discharging or threatening to discharge any of its employees, or
in any other manner discriminating or threatening to discriminate in
regard to the hire or tenure of employment or terms or conditions of
employment of its employees to encourage membership in Los Angeles
Joint Board, Amalgamated Clothing Workers of America, CIO, or
any other labor organization of its employees, except to the extent that
such conduct may be required by a valid agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
(c) Requiring its employees, who are included in any collective-
bargaining agreement authorized by Section 8 (a) (3), to authorize
the deduction of dues and initiation fees from their compensation, or
to pay such dues and initiation fees to Los Angeles Joint Board,
Amalgamated Clothing Workers of America, CIO, or to any other
labor organization of its employees, except to the extent that paid-up
membership in a labor organization may be required as a condition
of employment by a valid agreement, as authorized in Section 8 (a)
(3) of the Act.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
whether there has been a violation of Section 8. However, as the Trial Examiner 's opin-
ion that the checkoff provision violated Section 302 did not form the basis for any of his
formal conclusions , findings, or recommendations , we find it unnecessary to modify any
of them.
Our adoption of the Trial Examiner 's recommendation that the Respondent Company
should not be required to withdraw and withhold recognition from the Respondent Union
is also predicated upon the absence of exceptions to this recommendation.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, in the manner and to the extent authorized in
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) Offer Louise Sample immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to
her seniority or other rights and privileges.
(b) Upon request, make available to the Board or its agents for
examination or copying all payroll records, social security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due under the terms of
this Order.
(c) Post at its plant at Long Beach, California, copies of the notice
attached hereto and marked "Appendix A.'14 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by Respondent Company's represent-
ative, be posted by said Respondent immediately upon receipt thereof
and maintained by it for at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
said Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order what steps
said Respondent has taken to comply herewith.
II. Respondent Union, Los Angeles Joint Board, Amalgamated
Clothing Workers of America, CIO, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Entering into, renewing, or enforcing any collective-bargain-
ing agreement with Respondent, Bayly Manufacturing Company,
which requires employees of said Company to acquire or maintain
membership in Respondent Union as a condition of employment, un-
less such agreement shall have been authorized as provided in Section
(a) (3) of the Act.
(b) Causing or attempting to cause Respondent, Bayly Manufac-
turing Company, its officers, agents, successors, and assigns, to dis-
criminate in regard to the hire or tenure of its employees or any term
or condition of employment, in violation of Section 8 (a) (3).
4 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."
BAYLY MANUFACTURING COMPANY 1341
(c) Requiring employees of Respondent, Bayly Manufacturing
Company, its successors or assigns , who are included in any collective-
bargaining agreement authorized by Section 8 (a) (3) of the Act, to
authorize the deduction of dues and initiation fees from their com-
pensation, as a condition of employment.
(d) In any other manner restraining or coercing employees of Re-
spondent, Bayly Manufacturing Company, its successors or assigns,
in the exercise of their rights guaranteed in Section 7 of the Act, except
in the the manner and to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Notify Respondent Bayly Manufacturing Company, in writ-
ing, that it withdraws all objections to the employment of Louise
Sample and that it requests said Respondent Company to offer her
immediate and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or other rights
or privileges.
(b) Post at its business offices and meeting halls in Long Beach,
California, copies of the notice attached hereto and marked "Appen-
dix B." Copies of said notice, to be furnished by the Regional Direc-
tor for the Twenty-first Region, shall, after being duly signed by an
official representative of Respondent Union, be posted by it imme-
diately upon the receipt thereof, and maintained by it for a period of
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted.
Reasonable steps shall be taken by said Union to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto and marked "Appendix B"
for posting, if Respondent Company desires, at its plant in Long
Beaoh, California, in places where notices to employees are customarily
posted.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order what steps
said Respondent Union has taken to comply therewith.
III. Respondents Bayly Manufacturing Company, Los Angeles
Joint Board, Amalgamated Clothing Workers of America, CIO, their
respective officers, representatives , agents, successors , and assigns,
shall :
(a) Jointly and severally, make whole said Louise Sample for any
loss of pay she may have suffered by reason of the discrimination
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against her, in the manner prescribed in the section of the Trial Ex-
aminer's Intermediate Report, attached hereto, entitled "The
Remedy."
(b) Jointly and severally, make whole each of the employees from
whose compensation deductions of dues and initiation fees were made
prior to June 28, 1952, by reimbursing each of said employees for the
amounts so deducted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days of the date of this Order what steps
they have taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint, as
amended, that Respondent Bayly Manufacturing Company has dis-
criminated in regard to the hire and tenure of employment and the
terms and conditions of employment of Vivian Allean Sample, within
the meaning of Section 8 (a) (3), and that Respondent Los Angeles
Joint Board, Amalgamated Clothing Workers of America, CIO, has
caused or attempted to cause Respondent Company to discriminate
against said Vivian Allean Sample in violation of Section 8 (a) (3),
thereby violating Section 8 (b) (2) and 8 (b) (1) (A), be, and they
hereby are, dismissed.
MEMBER MURDOCK , concurring and dissenting in part :
I join with my colleagues in adopting all of the Intermediate
Report except for one finding and conclusion. That finding seems to
me to be predicated upon such an erroneous application of Section 8
(b) (2) of the Act that I am compelled to note, my disagreement. I
refer to the finding and conclusion at lines 46-53 at page 16 of the
mimeographed Intermediate Report. The Trial Examiner there cor-
rectly finds that "by requiring and coercing employees to sign authori-
zations for the deduction of dues, initiation fees, and assessments," the
Respondent Union violated Section 8 (b) (1) (A) of the Act. How-
ever, the Examiner goes further and incorrectly finds that the same
conduct also violated Section 8 (b) (2) of the Act. This finding
apparently overlooks the fact that Section 8 (b) (2) embraces only
conduct by unions directed to employers to cause or attempt to cause
them to discriminate against employees. The Trial Examiner offers
no rationale to support the conclusion that when a union or its agents
threaten employees to get them to sign checkoff authorizations, such
conduct constitutes not alone restraint and coercion of the employees
violative of Section 8 (b) (1) (A), but in addition a "cause or attempt
to cause an employer to discriminate" violative of Section 8 (b) (2).
My colleagues advert to the fact that the record shows that on dif-
ferent occasions representatives of "both" the Union and of the Em-
ployer told employees they would have to sign a checkoff authoriza-
BAYLY MANUFACTURING COMPANY 1343
tion as a condition of employment. Their conclusion from these facts
that it is "clear that the Union thereby attempted to cause and did
cause the Employer to discriminate" is patently a non sequitur. What
is clear is that there is nothing in the record to show that the Union
requested the Employer exert pressure on the employees to this end;
and in the absence of such evidence of union conduct directed to
the Employer, there is no warrant for any conclusion that what the
Employer did was "caused" by the Union.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT enter into, renew, or enforce any collective-
bargaining agreement with Los ANGELES JOINT BOARD, AMAL-
OAMATED CLOTHING WORKERS OF AMERICA, CIO, or with any other
labor organization, which requires our employees to acquire or
maintain membership in such labor organization as a condition of
employment, unless such agreement shall have been authorized
as provided in Section 8 (a) (3) of the Act.
WE WILL NOT encourage membership in Los ANGELES JOINT
BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or
in any other labor organization of our employees, by discrimi-
nating or threatening to discriminate in any manner in regard
to the hire or tenure of employment or terms or conditions of
employment of our employees, except to the extent that such con-
duct may be required by a valid agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
WE WILL NOT require our employees, who are included in any
collective-bargaining agreement with Los ANGELES JOINT BOARD,
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or any other
labor organization authorized by Section 8 (a) (3) of the Act,
to authorize the deduction of dues and initiation fees from their
compensation, as a condition of emplo meet with our company.
WE WILL NOT in any manner inter re with, restrain, or coerce
our employees in the exercise of th r right to self-organization,
to form labor organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, in
the manner and to the extent authorized in Section 8 (a) (3) of
the Act.
WE WILL offer Louise Sample immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges previously
enjoyed and, jointly and severally with Los ANGELES JOINT BOARD,
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, make her
whole for any loss of pay suffered as a result of the discrimina-
tion against her.
WE WILL, jointly and severally with Los ANGELES JOINT BOARD,
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO , make whole
each of the employees from whose compensation deductions of
dues and initiation fees were made prior to June 28, 1952, by
reimbursing each of said employees for the amounts so deducted.
All our employees are free to become or remain, or to refrain from
becoming or remaining members of any labor organization, except to
the extent that such right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
BAYLY MANUFACTURING COMPANY,
Employer.
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.
Appendix B
NOTICE TO ALL MEMBERS OF Los ANGELES JOINT BOARD, AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, AND TO ALL EMPLOYEES OF
BAYLY MANUFACTURING 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, as amended, we hereby notify you that :
WE WILL NOT enter into, renew, or enforce any collective-bar-
gaining agreement with BAYLY MANUFACTURING COMPANY which
requires its employees to acquire or maintain membership in our
labor organization as a condition of employment, unless such
agreement shall have been authorized as provided in Section 8 (a)
(3) of the Act.
WE WILL NOT cause or attempt to cause BAYLY MANUFACTURING
COMPANY, its successors or assigns, to discriminate in regard to
BAYLY MANUFACTURING COMPANY 1345
the hire or tenure of employment or the terms or conditions of
employment of its employees in violation of Section 8 (a) (3),
except in the manner and to the extent authorized in Section 8
(a) (3) of the Act.
WE WILL NOT require employees of BAYLY MANUFACTURING
COMPANY, its successors or assigns, who are included in any col-
lective-bargaining agreement authorized by Section 8 (a) (3) of
the Act, to authorize the deduction of dues and initiation fees
from their compensation, as a condition of membership in our
union.
WE WILL NOT restrain or coerce employees of BAYLY MANUFAC-
TURING COMPANY, its successors or assigns, in the exercise of their
rights guaranteed in Section 7 of the Act, except in the manner
and to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization, as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the
Act.
WE WILL, jointly and severally with said BAYLY MANUFACTUR-
ING COMPANY, its successors and assigns, make whole Louise
Sample for any loss of pay suffered as a result of the discrimina-
tion against her.
WE WILL, jointly and severally with said BAYLY MANUFACTUR-
ING COMPANY, its successors and assigns, make whole each of the
employees from whose compensation deductions of dues and initi-
ation fees were made prior to June 28, 1952, by reimbursing each
of said employees for the amounts so deducted.
Los ANGELES JOINT BOARD, AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO,
Labor Organization.
Dated -------------------- By --------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These cases, consolidated for the purpose of hearing, are before the Board
upon the complaint of the General Counsel, Issued April 18, 1952, based on sep-
arate charges filed by United Garment Workers of American, AFL, herein called
the Charging Union or the Garment Workers, against Bayly Manufacturing Com-
pany, herein called Respondent Company or the Company, and Los Angeles Joint
Board, Amalgamated Clothing Workers of America, CIO, herein called Respond-
ent Union, the Union, or the Amalgamated, as the context may require. Pur-
suant to notice, hearing was held from June 9, 1952, to June 13, 1952, inclusive,
at Los Angeles, California, at which all parties were represented by counsel or
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representatives , and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses , introduce relevant and material evidence,
argue orally , and file briefs and proposed findings of fact and conclusions of
law. The General Counsel and counsel for respective Respondents argued orally
on the record . Briefs were received from Respondent Union, on August 11,
1952 , and from Respondent Company , on August 12, 1952.
Copies of the charges were duly served on the respective Respondents ; copies
of the consolidated complaint , accompanied by copies of the charges , order con-
solidating the cases , and notice of hearing were duly served on all parties.
The consolidated complaint , as amended prior to, and at the outset of the
hearing, alleges , in substance , that since November 15, 1951, Respondent Com-
pany has engaged in unfair labor practices within the meaning of Section 8 (a)
(1), (2), and ( 3), and Section 2 (6) and (7) of the Act,' and Respondent
Union has engaged in unfair labor practices within the meaning of Section 8 (b)
(1) (A) and ( 2) and Section 2 ( 6) and (7) by (1) entering into , enforcing, and
giving effect to a collective -bargaining agreement providing for a greater measure
of union security than that permitted by Section 8 (a) (3) ; (2 ) requiring
employees to sign authorizations permitting the deduction of dues, initiation
fees, and assessments from their compensation ; ' (3) on or about January 2,
1952, respectively discharging , and thereafter refusing to reinstate , and causing
the discharge of Louise Sample because she had refused to sign an authorization
permitting the deduction of dues , initiation fees, and assessments , despite the
fact that Respondent Union had denied her membership, and Respondent Com-
pany had reasonable grounds for believing that said Union had made membership
unavailable to her on the same terms and conditions generally applicable to other
members; and ( 4) on or about May 13, 1952, respectively discharging , and causing
the discharge of, Vivian Sample because she had aided the charging Union and
her sister , Louise Sample , in procuring evidence to support the latter ' s case 3
Respondents , in their separate answers to both the original consolidated
complaint and the complaint as amended , admit the jurisdictional allegations
but generally deny the substantive allegations of the complaint , including those
charging the commission of unfair labor practices.
At the close of the General Counsel's case , and again at the close of the evi-
dence, Respondents severally moved to dismiss the complaint , as amended, on
various grounds , including insufficiency of proof and failure to state a cause of
action. The motions were denied.
Upon the entire record in the case , and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Bayly Manufacturing Company, a corporation, is and at all times material
herein has been engaged in the manufacture of work clothing in the States of
Oregon, Colorado, and California, exclusively for J. C. Penney Company. In the
course of its business operations, Respondent Company causes and has caused
large quantities and valuable amounts of merchandise, supplies, equipment, and
I Labor Management Relations Act, 1047, 61 Stat. 136.
' The inclusion of assessments in this allegation was as a result of an amendment of the
complaint prior to the hearing.
8 The allegations with respect to Vivian Sample were added by amendment at the com-
mencement of the hearing, over the objection of Respondents. Cathey Lumber Company,
86 NLRB 157, and enfd. 1S5 F. 2d. 1021 (C. A. 5), on petition for rehearing, enf. denied on
other grounds, 189 F. 2d 428.
BAYLY MANUFACTURING COMPANY 1347
materials to be transported from and through States of the United States other
than the State of California to its place of business at Long Beach, California,
the only plant with which these proceedings are concerned.
During the calendar year 1951, Respondent Company caused large quantities
of merchandise to be sold and transported in interstate commerce from its manu-
facturing plants through States of the United States other than the State of Cali-
fornia. Respondents admit, and the undersigned finds, that Respondent Com-
pany, at all times material herein, has been and is engaged in commerce within
the meaning of the Act, and that the policies of the Act will be effectuated by
assertion of jurisdiction'
II. THE ORGANIZATIONS INVOLVED
United Garment Workers of America, AFL, affiliated with American Federa-
tion of Labor, and Los Angeles Joint Board, Amalgamated Clothing Workers of
America, CIO,' affiliated with Congress of Industrial Organizations, are each
labor organizations admitting to membership employees of Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of etents
For some years prior to 1951 , the Garment Workers, the charging party herein,
had been collective -bargaining representative of Respondent Company's produc-
tion employees at the Long Beach plant. The last collective-bargaining agree-
ment between these parties, of which there is any evidence in the record, entitled
"Supplementary Agreement ," became effective May 23, 1950, for a term of 1 year,
but to continue automatically in the absence of prescribed notice of intention to
terminate.
Early in 1951, the Amalgamated, Respondent Union herein , launched an organi-
zational drive at the Company's plant. The drive was directed by Griselda
Kuhlman, an organizer for the Los Angeles Joint Board, under the general super-
vision of Manager Jerome Posner. Campaign literature , prepared by Kuhlman
in collaboration with Posner, enclosing designation cards was distributed by mail
to the employees. The organizational campaign was conducted at the plant by a
shop committee headed by Chairlady Florence Blanchette . In addition to the
solicitation by mail , members of this committee also solicited employees in person
to sign designation cards.
In a mimeographed letter on stationery of the Amalgamated , mailed early in
April 1951 , to some 100 employees , it was announced that no initiation fee would
be required of "those who sign up before the shop is organized."
On August 16, 1951 , following a representation election pursuant to a petition
filed by the Amalgamated , the Garment Workers appearing on the ballot, the
Amalgamated was certified as the bargaining representative of Respondent
Company 's employees'
The first union membership meeting of employees of the Company was held in
the Town Hall, Long Beach , California , in September 1951. Posner , Kuhlman,
and Business Agent Irving Roitman were present . Posner announced that, in
4 Bayly Manufacturing Company, Cases Nos. 21-RC-1845 and 21-UA-3772 ( not reported
in printed volumes of Board Decisions).
5 Los Angeles Joint Board is comprised of some eight locals in the Los Angeles area, each
of which is represented on that Board. Local 635, the one immediately involved herein,
was organized after the representation election was held, and membership therein Is lim-
ited to employees of Respondent Company.
"gayly Manufacturing Coinpany., Case No. 21-RC-1845 (not reported in printed volumes
of Board Decildons).
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Union's established policy, no initiation fee would be charged
employees who joined before the deadline, later to be determined.
About October 1, 1951, representatives of the Amalgamated, including the shop
committee, met with James T. Merchant, general manager of Respondent Com-
pany's Long Beach plant, to discuss a proposed collective-bargaining agreement
submitted earlier by the Amalgamated. During the contract negotiations, the
provisions of the proposed contract were read and discussed. Regarding the
checkoff authorization, Merchant testified that his sole concern was that author-
ization for the deduction should be required to be in writing. Before the con-
ference concluded, according to the undisputed testimony of Committee Member
Bertha Silverthorn, Union Organizer Kuhlman furnished committee members
with checkoff authorization blanks to be distributed to the employees. It is
uncertain whether Merchant was present when this was done because he had
absented himself from the conference for about 10 or 15 minutes, during which
this could have occurred.
Some 6 weeks elapsed before agreement was finally reached. In the interim, the
Amalgamated filed a petition with the Regional Office of the Board for a union-
authorization election, and on October 15, 1951, following an election held on
October 5, the Amalgamated was authorized to enter into an agreement with
Respondent Company, requiring membership in said Union as a condition of em-
ployment in accordance with the provisions of Section 8 (a) (3) of the Act.'
In about mid-October, another meeting of the Company's employees was held at
Town Hall, Long Beach. Representatives of the Amalgamated reiterated that
initiation fees would be waived until "the shop was organized." The proposed
contract in its entirety was read to the employees. Only two matters remained
in dispute-the provisions relating to cutters' rates and vacation pay.
Early in November, representatives of the Amalgamated again met with Gen-
eral Manager Merchant for further negotiations. The issues relating to cutters'
rates and vacations still remained unresolved.
Sometime between the first bargaining conference in October and the second
in November, a meeting of the shop committee was held at the home of Com-
mittee Member Kathryn Houser, attended by Business Agent Roitman and Organ-
izer Kuhlman. Members of the committee turned in signed checkoff authoriza-
tions which they had succeeded in obtaining, and reported on employees who
had been approached but had refused to sign. On the reverse side of some un-
signed checkoff forms, members of the shop committee had made notations
indicating the employee who had been solicited and any comments she might
have made. As of this time, some 20 employees had refused to sign the checkoff.
At a union meeting of the employees held in November, soon after the second
bargaining conference, Posner reported on the state of negotiations and the ap-
parent impasse regarding the two contested issues. He suggested that the^pro-
posed contract be reread in its entirely, but the employees demurred and, conse-
quently, only the two contested clauses were read. It was voted to accept the
contract. Posner then referred to the requirement of union membership as a
condition of employment, and observed that the time had arrived for the fixing
of a deadline for joining the Union without payment of an initiation fee. Decem-
ber 1 was decided on as the date.
Urging the employees to join the Union promptly, Posner explained that, apart
from any saving of initiation fee, the accrual of sick benefits, hospital, maternity,
and death benefits would be based on the date of their joining. Posner also
7 Bayly Manufacturing Company, Case No. 21-UA-8772 (not reported in printed vol-
umes of Board Decisions ). Public Law 189, 1951, providing for the elimination of the
requirement for union-authorization elections, did not become effective until October 22,
1951.
BAYLY MANUFACTURING COMPANY 1349
admittedly urged employees to sign checkoff authorizations . According to Kuhl-
man, he did not, however, make any statement to the effect that employees would
be required to sign a checkoff as a condition of employment in the plant. On
the other hand , so far as the record discloses , neither Posner nor any other
union representative advised the employees on this occasion that they could join
the Union without signing a checkoff. Nor did any union representative advise
the employees how much time they would be afforded to join, the emphasis being
placed on the desirability of joining before the deadline to escape payment of the
initiation fee. At this meeting, Posner or one of the other union representatives
also delivered an additional supply of booklets containing duplicate checkoff
authorization forms to members of the shop committee.
Silverthorn testified credibly, however, that it was reported at this meeting'
that the committee had been encountering resistance from some employees to
the signing of the checkoff. Members of the committee stated that some of the
women were "determined that they wouldn't sign." Asked whether the checkoffs
"had to be signed" by a specified date, Kuhlman said that those who did not sign
the checkoff by December 1 would be required to pay the initiation fee while
those who did sign, would not. According to Silverthorn, both Business Agent
Roitman and Kuhlman also stated that those who did not sign the checkoff would
not be able to work for the Company-"That was to be a union shop and, in
other words, to be a union shop under the CIO, everyone had to belong to the
CIO or they could not work for Bayly Manufacturing Company."
On November 15, 1951, Respondent Company and the Amalgamated executed
a collective-bargaining agreement, effective until May 14, 1953, automatically
renewable annually thereafter in the absence of stipulated notice by either party
of a desire to modify or terminate the contract!
With regard to checkoff and union security, the contract, as executed, provided :
15. CHECK OFF:
The Company shall deduct from the wages of its employees when author-
ized by the employees in writing, membership dues and initiation fees of the
Union. The amounts deducted pursuant to such authorization shall be trans-
mitted at monthly intervals to the properly designated officials of the Union,
together with a list of the names of the employees from whom the deductions
are made.
16. UNION MEMBERSHIP:
The Local Union agrees not to solicit new employees for membership for
a period of from four (4) to six (6) weeks from date of employment depend-
ing on type of work assigned to new employee. Additional time to assure
ability of new employees may be requested by the Company and may be
granted by the Local Union. All employees shall become members of the
Amalgamated Clothing Workers of America and shall remain members in
good standing.
8 Silverthorn fixed the occasion as the second union meeting in September or October,
before the contract was signed , "held in the building in Long Beach, in the union
office. . . The record indicates that union meetings during this period were held at
the Town Hall , and it does not appear that any union office had been established at the
time. Since Silverthorn described the meeting as the one at which the contract was
considered and the checkoff blanks were distributed , the undersigned concludes that she
was referring to the meeting just discussed in the text, although this appears to have
been the third union meeting.
9 Inasmuch as the record does not reveal the exact date of the union meeting in Novem-
ber, it is not clear whether the contract was executed prior to the November meeting or
afterward . It is probable that the contract , signed by Posner and Kuhlman , on behalf
of the Amalgamated, had actually been executed prior to that meeting and that the vote
to accept the contract was, in effect, a vote to ratify. In any event the undersigned con-
siders it unnecessary to make an express finding as to this fact.
257965-54-vol. 103-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the execution of the collective-bargaining agreement, Chairlady Blanch-
ette, on behalf of the Amalgamated, posted on plant bulletin boards, apparently
without objection by the Company, four copies of a mimeographed notice on union
stationery, over Posner's facsimile signature. Announcing the execution of the
contract, the notice referred to the Union's earlier assurances that "when [sic]
the shop was organized, no one would be required to pay an initiation fee," and
continued :
This promise stands now. Anyone now working in the plant, or employed
before December 1, will be excused from the initiation fee. Anyone employed
after December 1 will pay an $18 fee This fee can be paid in several install-
ments by arrangement with the committee.
Under the contract, all production employees must be members in good
standing of the Amalgamated. This includes all machine operators, inspec-
tors, cutters, shippers, and bundle boys.
You may secure your membership slip from any of the following members
of the Committee : Florence Blanchette, Alta Babcock, ('lets DeRousee, Edgar
Wurl, Katherine Houser, or Bertha Sliverthorn.
It is urgent that you sign these authorization slips right away After one
month's membership, you are entitled to insurance benefits for disability of
$13 per week for up to 13 weeks. After 6 months' membership, you are also
entitled to hospitalization, surgical care, maternity and $500 life insurance.
Of a total of 160 to 180 employees 10 only 1, Louise Sample, whose case is dis-
cussed later, failed to join the Amalgamated or sign a checkoff authorization. She
was subsequently discharged by the Company at the behest of the Amalgamated.
It has been seen that, although the Amalgamated had been duly certified as
exclusive bargaining representative of Respondent Company's employees and
had been authorized, pursuant to an election held for the purpose, to negotiate
a union-shop contract in accordance with the proviso to Section 8 (a) (3), the
union-security provisions which the parties actually executed exceeded the
permissible limits of the Act. The critical language of these provisions, re-
quiring all employees to become and remain members in good standing of the
Amalgamated, without affording them the 30-day grace period, created con-
ditions proscribed by the Act. Nor was the illegality of this provision neutral-
ized by the Union's agreement "not to solicit new employees for membership
for a period of from four (4) to six (6) weeks from date of employment depend-
ing on type of work assigned to new employee."
Assuming, in favor of Respondents, that the provision requiring membership
in the Union should be construed in the light of the Union's undertaking not
to solicit new employees (luring the stated period, and that, when so construed,
employees would he afforded a grace period of from 4 to 6 weeks before being
required to join the Union, the union-security provisions would still fail to
conform to the statutory requirements For, with respect to some new employees,
at least the Union could, at its option, solicit their membership at the end of
4 weeks, or 28 calendar days, and because of the further provision requiring all
employees to become and remain members in good standing, without qualification
as to time, compel those employees to join the Union at the end of 28 days.
Moreover, it should be noted that the union-security provisions contravene the
statute in a further respect, in that they fail to afford persons not already union
10 The record does not reveal the exact number of a mplovees in the unit involved herein.
The estimate is based on General Manager Merchant's testimony that the Company
emploved 4 foreladies or supervisors, each of whom had supervision over from 40,to 45
operators.
BAYLY MANUFACTURING COMPANY 1351
members, employed at the time of the execution of the contract, the statutory
30-day period before requiring them to join.u
As to Respondents' contention that the illegal provisions have not actually
been enforced, the Board has held that the mere execution of an unauthorized
union-security provision constitutes a violation of the Act, even where the pro-
vision has not been enforced. In that connection, the Board has said :
As the mere execution of an unlawful union-security contract, however,
constitutes a violation of Section 8 (a) (1), (2), and (3) of the Act, the
fact that the union-security clause was not enforced does not preclude a
finding that the Company violated these sections of the Act. 12
Elsewhere, the Board has stated :
Such an unlawful provision serves no less as a restraint on employees' right
to refrain from joining an organization than if the parties intend to enforce
it where, as here, there is no evidence that the employees were informed
that the [unlawful provision], which theretofore had been in effect, would
no longer be operative. 11
It is therefore found that by entering into the collective-bargaining agreement,
dated November 15, 1951, which included union-security provisions not sanctioned
by the Act, Respondent Company has engaged in unfair labor practices within
the meaning of Section 8 (a) (1), (2), and (3), and Respondent Union has
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2)."
The Board has held, however, that in the absence of an intention to enforce
the provision, the continued existence of such provision in the contract does not
constitute a violation of Section 8 (a) (3) by an employer, or of Section 8 (h)
(2) by a union, because "no discriminatory conditions of employment [are]
actually thereby created."" It is, therefore, necessary to determine whether
the parties intended to, or did, in fact, enforce the unlawful provision.
To begin with, Respondent Union appears to contend, as Manager Posner
testified, with visible embarrassment, that the union-security provisions included
in the contract had been lifted verbatim from the previous contract between
Respondent Company and the Garment Workers, the charging party herein "
A comparison of the corresponding provisions in the respective contracts appears
to support the explanation as to the manner in which the terminology carne
to be used. The explanation, however, plausible as it may seem, furnishes no
justification for the inclusion of union-security provisions not sanctioned by the
Act.
The record discloses, moreover, that the contract, as originally proposed, and
as finally settled, including the provisions dealing with union security and
checkoff, received considerable attention during the bargaining negotiations
n United Electrical, Radio and Machine Workers of America, Local 622 (Stupakoff
Ceramic & Manufacturing Company ), 98 NLRB 664; Al Mae8era, Inc, et at., 97 NLRB
712.
12 Rockaway News Supply Company, Inc., 94 NLRB 1056 , citing Julius Resnick, Inc.,
86 NLRB 38 , Childs Company , 93 NLRB 281.
Ls Port Chester Electrical Construction Corporation , et at., 97 NLRB 354.
14 Port Chester Electrical Construction Corporation , at al, supra ; New York State
Employers Association , Inc, et al, 93 NLRB 127; Julius Resnick, Inc.. supra . See also
Acme Mattress Company, Inc., at al, 91 NLRB 1010.
15 Port Chester Electrical case, supra , citing Monolith Portland Cement Company, et at.,
94 NLRB 1358
16 Posner testified, however, that at the time the Union submitted the contract containing
the union -security provisions to the Company he was not aware that the Board had held
that incumbent employees who were not already members of the Union were entitled to
.80 days before being required to join.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the parties. General Manager Merchant , it will be recalled, took
occasion to insist that, with respect to the checkoff, he would require that
authorization for the deductions be in writing. It is evident, therefore, that the
provisions in question could scarcely have escaped the notice of Respondents.
More significant, however, is the fact that at one of the early union meetings
the proposed contract, containing the unlawful provisions, was read in its
entirety to the assembled employees. There is no evidence that the employees
were notified then or at any time thereafter that the union-security provisions
would not be enforced, or that employees would be afforded 30 days from the
effective date of the agreement, or from commencement of employment, before
being required to join the Union. The evidence most favorable to Respondents
discloses merely that employees were told at this and subsequent meetings that
membership in the Union would be required as a condition of employment, that
initiation fees would be waived for all those who joined by December 1, and that
employees would be invited to sign checkoff authorizations.
Furthermore, Respondent Union's assertion that it had no intention of en-
forcing the union-security provisions, as written, is negated by the undisputed
evidence that, contemporaneously with the execution of the contract, Respond-
ent Union posted on plant bulletin boards, with the acquiescence of Respondent
Company, notices announcing the signing of the contract and stating, among
other things,
Under the contract, all production employees must be members in good
standing of the Amalgamated. This includes all machine operators, cut-
ters, shippers and bundle boys.
Significantly absent from these notices was any advice that employees were
not required to join the Union until the expiration of the 30-day grace period.
Under these circumstances it can scarcely be contended that the parties had
no intention of enforcing the unlawful provisions, and that the inclusion of
those provisions in the contract resulted from inadvertence or mistake. The
case is, therefore, clearly distinguishable from the Monolith case, supra, where
a majority of the Board declined to hold that the inclusion of an unlawful
union-security provision by mistake in the published version of a contract con-
stituted illegal discrimination, despite a delay of more than 5 months in the
publication of a supplemental agreement correcting the mistake.17
In the instant case, the evidence fails to establish that the illegal union-
security provisions had been included in the contract as a result of mutual
mistake, and that the parties had agreed or intended not to enforce the dis-
criminatory contract. By including said provisions, with the apparent intention
of enforcing the same, and by failing thereafter to notify the employees that the
unlawful provisions would no longer be operative, Respondents created discrimi-
natory conditions of employment proscribed by the Aet.
Despite the foregoing, Respondents contend that the union-security provisions,
as written, have not in fact been enforced, and that in actual practice no em-
ployee has been required, as a condition of employment with the Company, to
join Respondent Union until the expiration of 30 days from the date of the con-
tract or, with respect to new employees, from the date of their employment 18
11 Although the majority of the Board held that no discriminatory conditions of employ-
ment had actually been created , the Board unanimously held the mistaken publication of
the illegal clause to constitute illegal interference with the employees ' rights, in violation
of Section 8 (a) (1), and unlawful assistance to the union , in violation of Section 8
(a) (2).
18 The record does not definitely establish whether any new employees were hired after
November 15, 1951 , the date of the contract , and, if so, when they were required to join
the Union.
BAYLY MANUFACTURING COMPANY 1353
To support this contention , evidence was offered through Emanuel Sosnick,
office manager of the Los Angeles Joint Board , and custodian of its records, that
none of the employees paid union dues before the expiration of 30 days from
the date of the signing of the contract , and that no dues were deducted from
wages of employees hired after December 1 until at least 30 days after their em-
ployment. Sosnick further testified that, according to union records , the first
remittance covering checked -off dues was received by the Union on December
17, more than 30 days after the contract was executed . Since, however, the
Company paid its employees on a biweekly basis, and the payroll period from
which the deductions were made covered the week ending December 15, it would
appear that the dues deductions were made on or before December 15, even
though they may not have been remitted to the Union until later . In any event,
assuming that the actual deductions were not made until 30 days after the
execution of the contract, this fact , alone, would be insufficient to establish
that employees had not been required to join within that period . Nor does the
fact that no employees were discharged by Respondent Company, and no re-
quest was made by Respondent Union for the discharge of employees during the
30-day period for failure to join the Union , establish that the illegal union-
security provisions were not actually in effect or being enforced . For, as the
record clearly establishes , all employees , except Louise Sample , had joined the
Union and signed a checkoff by December 1. Hence , there would have been no
occasion for Respondent Union to request , or Respondent Company to effect,
the discharge of any employees for failure to join the Union during the period
involved.
It may be argued , as Respondent Union apparently does, that the employees
who joined the Union before December 1 , did so voluntarily to avoid payment
of the initiation fee rather than under compulsion, in the belief that they were
required to join before the deadline in order to work for the Company . The fact
remains that they were never advised that they were entitled to the 30-day
statutory grace period before they could be required to become members. Busi-
ness Agent Roitman, who became the representative of Local 635, the local directly
involved herein , after it was organized , himself testified at one point, although he
later changed his testimony under redirect examination by counsel for the Union,
that it was his understanding that under the terms of the contract all employees
who failed to join the Union by December 1 were subject to discharge. It is
little wonder , then , that the employees had received a similar impression, and
one which Respondents took no action to dissipate.
It is, moreover, clear from the state of the record that whatever Respondents'
undisclosed intention may have been regarding enforcement of the unlawful
provisions , neither of Respondents effectively communicated to the employees
that they would not be required to join the Union as a condition of employment
for 30 days . Since the language of the illegal provisions was chosen by Respond-
ent Union , and acquiesced in by Respondent Company, the burden of establishing
that the unlawful conditions were not actually enforced must rest with Respond-
ents, and this burden they have not sustained . Furthermore , even if it be as-
sumed that employees were prompted to join the Union before December 1, less
than 30 days before they could legally have been required to do so, partly because
of their desire to avoid payment of the initiation fee, the evidence reasonably
justifies the conclusion that they were influenced in material part by the fact
that they had been led to believe by both Respondents that they were required
to join the Union by December 1 in order to retain their jobs at the plant. In
these circumstances the burden is on Respondents to "disentangle the conse-
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quences for which [they are] chargeable from those from which [they are]
immune." '°
Further evidence was offered tending to prove that in addition to requiring
employees to join the Amalgamated by December 1 in order to avoid payment of
the initiation fee, and to continue working at the plant, employees were required
to sign checkoff authorizations before the deadline.
Thus, early in November, Shop Committee Member Kathryn Houser solicited
Cressie Charlton, who had been employed by the Company for 14 or 15 years,
to sign a designation card 20 Charlton refused. About 10 days before the De-
cember 1 deadline, during a rest period, Charlton asked Mattie Jackson, who
was shown to be a supervisor or forelady, if it were true that employees "had
to sign those things," apparently referring to the checkoff authorizations, in
order to work at the plant. Jackson replied, in substance, according to Charlton,
"Well, I am afraid that it is." Charlton admitted that neither she nor Jackson
actually used the term "checkoff," and that Charlton had not previously seen
a checkoff form. She testified, however, that in her conversation with Jackson,
she was referring to the checkoff and that Jackson so understood it. Charlton
further testified that she had previously read the union notice posted on the
plant bulletin board, but that she did not take occasion to ask Jackson whether
employees were required to join the Union by the December 1 deadline. Jack-
son, apparently, did not volunteer the information.
Although Jackson testified that she and other supervisors had been instructed
by General Manager Merchant to refrain from discussing the Union with em-
ployees, and had been advised by him that the policy of management was to re-
main neutral, she admitted that she had engaged in a conversation with Charlton
about the Union on the occasion in question. According to her, many of the em-
ployees under her supervision had been in the habit of coming to her with their
personal problems, and on this occasion Charlton had asked her when she would
have to join the Union to avoid paying the initiation fee. Jackson testified that
she replied that the information was posted on the bulletin board. When Charl-
ton asked if she would be discharged if she did not join the Union, Jackson re-
plied, according to her testimony, that she did not think so.
Upon an evaluation of the testimony, the circumstances leading up to the
conversation, the evidence of the general information disseminated among em-
ployees at the plant regarding the necessity for joining the Union before the
deadline in order to escape payment of the initiation fee, and the observation
of the demeanor of the witnesses involved, the undersigned concludes that the
conversation occurred substantially in accordance with Charlton's testimony.
In view of the widespread knowledge throughout the plant of the December It
deadline, and the posting of notices on the bulletin boards to the same effect,
which Charlton testified she had read previously, it is wholly improbable that
her questions would have been directed to this subject. What Charlton was
obviously concerned about at the time was whether she was required to sign a
checkoff, as well as join the Union, by that date in order to retain her job. It is
evident from Charlton's credited testimony that Jackson had clearly implied
'ON L R. B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C A. 2).
20 The term "designation card" is used in contradistinction to "checkoff authorization."
Two separate forms were used, the former, designating the Los Angeles Joint Board to
represent the employees for the purpose of collective bargaining and authorizing it to
negotiate a union-shop agreement, consisted of a white card printed in blue ink on the
back of a business reply card requiring no postage, and containing the printed address of
the Union. The latter form consisted of a white blank printed in black ink, designated at
the bottom as FORM "C", and combined a designation of the Union as collective-bargaining
agent, with authorization for the deduction of initiation fees, dues , and assessments.
BAYLY MANUFACTURING COMPANY 1355
that she would have to do both if she wished to continue in the Company's em-
ploy. It was this advice, according to Charlton, which finally induced her to
sign the checkoff. It is, of course, immaterial that Jackson may have been mis-
taken or misinformed in the premises, if she did in fact, as has been found, make
the statement attributed to her by Charlton.
On November 30, during the noon recess, Chairlady Blanchette approached
Charlton in the plant and asked her whether she intended to sign the checkoff.
The record does not reveal her reply but Charlton did not do so at the time.
Before the recess ended, however, Charlton spoke to Committee Member Alta
Babcock and told her, "if I had to sign one of the darn things, to give me one
and I would sign it." Babcock handed her a booklet of checkoff blanks, and
late that afternoon Charlton signed the checkoff. Since, as has been seen, no
valid union-security provision existed at the time, the Union could not have
required membership therein as a condition of employment. Moreover, even
under a valid union-authorization contract, a union or an employer may not
compel employees to sign a checkoff authorization as a condition of employment.
Forelady Jackson's statements to Charlton were, therefore, violative of the
Act on two grounds : First, because Jackson had clearly implied that Charlton
would be required to join the Union as a condition of employment when, in fact,
no valid union-security provision existed permitting such requirement ; and
second, because Jackson had further stated, in effect, that Charlton would be
required to sign a checkoff authorization in order to continue working at the
plant, a requirement not sanctioned by the Act. By the said statements of
Forelady Jackson, Respondent Company furnished further illegal assistance
and support to Respondent Union, thereby violating Section 8 (a) (2), and
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act.
Further evidence, alleged to constitute assistance and support by Respondent
Company to Respondent Union, was offered thiongh the testimony of Vivian A.
Sample, sister of Louise Sample. According to her, some time between August
8, 1951, the date of the representation election, and November 30, 1951, General
Manager Merchant addressed the employees, over the public address system
during a noon recess. Merchant announced, she testified, that he wished to
quiet a rumor that had been circulating that the plant was to be closed down
or moved, and assured the employees that the rumor was unfounded. In No-
vember, probably before November 15, according to Sample, Merchant again
addressed the employees under similar circumstances, and told them that rumors
had been circulating in the plant that employees would be required to pay an
$18 initiation fee. He admonished them to discount the rumors.
Sample further testified that soon after this talk, in a conversation with
Shop Committee Members Houser and Silverthorn, in the presence of other
employees, Sample referred to Merchant's loudspeaker address about the initia-
tion fee. According to Sample, Houser and Silverthorn agreed that Merchant
had correctly stated the situation, and remarked that employees would not be
required to pay an initiation fee if they joined the Union by December 1.
It is apparently contended that Merchant's speech, which is alleged to have
occurred in November, constitutes additional evidence of illegal assistance and
support to the Union. While admitting that he addressed employees occasion-
ally over the loudspeaker at the plant and that he had done so on January 10,
1952, concerning the rumor that the plant would close, Merchant unequivocally
denied that he had given such a talk in November 1951 on any subject, much
less on the subject of the initiation fee. In this, he was corroborated by Houser
and Blanchette, both of whom testified that although they had been in attend-
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance at the plant every workday in November, they had heard Merchant make
no loudspeaker address during that month.
No corroboration of Sample's testimony was offered on this point, and con-
sidering the number of employees presumably available to corroborate her testi-
mony, if the incident had occurred, the failure to produce them as witnesses
seriously impairs the weight to be given to her testimony. She herself admitted
that she had been unable to hear all that Merchant allegedly said on that occa-
sion . The undersigned is compelled to conclude that Sample was mistaken as
to the date of Merchant's talk, and that she was in fact referring to the talk
Merchant admittedly gave in January. In view of the general discussion in the
plant concerning the necessity for joining the Union by December 1 to avoid
payment of initiation fees, it is probable that Sample may have mistakenly con-
cluded that Merchant had also referred to that subject in the course of his talk
in January 1952. In any event, assuming Merchant had in fact made the state-
ment regarding initiation fees, attributed to him by Sample, either in November
or January. and that this may be reasonably construed as an effort by Respondent
Company to aid the Union in recruiting members, the evidence is insufficient to
warrant a finding of illegal assistance and support on this ground.
Evidence offered on this issue through Paul Hupman, former superintendent
of Respondent Company, is, however, more significant. Hupman had been em-
ployed by the Company since April 1937, except for 4 years in the armed services.
Since 1946, he had been employed at the Long Beach plant, for the last 2 years
as plant superintendent and before that as assistant to General Manager Mer-
chant. With other supervisory employees and the "personnel clerk" he attended
weekly meetings with Merchant. Hupman testified that he had been aware of
the election campaign being waged at the plant, and that he had seen designation
cards of the Amalgamated "all over the factory-almost everyone had them"
before the election, but that he had not seen them since. He further testified
that several days before his employment was terminated on November 17, 1951,
he had seen the notice posted by the Amalgamated on the bulletin board, and
had seen a copy of it in the office. He attended contract negotiations, heard
discussions regarding the checkoff, and saw checkoff forms in Merchant's office
at some stage of the negotiations.
During October 1951, while contract negotiations were in progress, Hupman
discussed piece rates with Merchant, occasionally in the presence of Roy Hertzler,
a time-study engineer retained by the Company. On several occasions during
this period, Hupman commented to Merchant on the savings to the Company
resulting from reduction in the piece rates proposed by the Amalgamated, and
observed that the rates would amount to a savings of almost one-third on certain
items. According to Hupman, Merchant acknowledged that the contract was
advantageous to the Company.
Hupman further testified that during the last week of his employment, toward
the close of the day when he usually conferred with Merchant on plant problems,
Hupman broached the subject of the checkoff and observed that some of the
staunch AFL (Garment Workers) supporters would be reluctant to sign the
checkoff. Merchant replied, according to Hupman, "If they want to work here
they will have to sign them."
In another conversation under similar circumstances, sometime after the
union-authorization election in October, Hupman testified, Merchant also told
him, "If any of the diehard . . . A. F. of L. girls caused any trouble that we
would have to weed them out." Hupman testified that he probably agreed with
Merchant at the time. Similar discussions were had at other times in October,
during which, according to Hupman, Merchant told him that he, Hupman, "would
BAYLY MANUFACTURING COMPANY 1357
have to get rid of Alma Pendergast" among others, whose names, except for
Clara Pierce, Hupman could not recall. Pendergast's employment, Hupman
testified, was terminated shortly before or soon after he left the Company's
employ. As to Pierce, he was unable to testify when she was separated, but
the evidence discloses that her employment was terminated at some unspecified
date thereafter, under circumstances not disclosed by the record. It appears,
however, that the Amalgamated later processed her grievance, although no
definite decision had been reached as of the date of the hearing.
In his testimony, Merchant categorically denied all of the statements attributed
to him by Hupman, testifying that he had never discussed the discharge of
Pendergast or Pierce with Hupman. To discredit Hupman, Respondent Com-
pany adduced evidence, principally through Hupman's own candid admissions,
that for several months prior to November 17, 1951, when his employment was
terminated by mutual consent,21 Hupman had not been "getting along" with
Merchant, and that, without first consulting with Merchant, Hupman had re-
quested the Company to transfer him to its Denver plant. Hupman also ad-
mitted that the Company had accused him, in a letter written by its attorney,
of circulating a rumor after his employment had been terminated that the plant
was to be moved or closed. He conceded, too, that after he had left its employ,
he had charged to the Company fountain pens he had purchased to replace his
personal pens which had disappeared at the plant, in the belief that the Company
should have compensated him for the loss. When Merchant took issue with him,
Hupman promptly reimbursed the Company for the merchandise charged to its
account. Another incident, which Hupman frankly admitted, involved a long-
distance telephone call, made Sunday, the day after his discharge, and originally
placed from his home. The call was not completed until later in the day, when it
was relayed to him at the plant where he had gone in the meantime. When later
notified that the call had been charged to the Company, he immediately reim-
bursed it for the amount involved.
On the basis of these incidents, Respondent Company seeks to impeach Hup-
man's testimony. The undersigned has considered these incidents in resolving
the conflict in the testimony between the two men, and concludes that the inci-
dents are so relatively trivial and insignificant as to afford no substantial basis
for a finding of bias or animus toward Respondent Company, and, hence, for
rejecting Hupman's testimony. Since the record indicates that Hupman left
the Company's employ by mutual consent, it is improbable that his testimony was
prompted by vindictiveness because of the termination of his employment. No
other plausible motive has been shown, and the undersigned has been able to
perceive none, which would explain Hupman's purpose in imputing to Merchant
the statements referred to unless they were in fact made . Hupman's testimony,
characterized as it was by his frank admissions concerning matters tending to
reflect unfavorably upon him, impressed the undersigned as sincere, plausible,
and convincing, free from any taint of bias or vindictiveness toward his former
employer, or prejudice or favor toward the charging Union. Merchant's denials,
on the other hand, were unimpressive and unconvincing, and betrayed a purpose
to exculpate himself and the Company from any wrongdoing. It should be noted,
too, that although Hupman placed Roy Hertzler at some of the conversations
in which Merchant is alleged to have made some of the remarks attributed to him,
a Regarding Hupman 's discharge , Merchant testified that when Hupman reported at
the plant on Saturday , November 17, 1951 , Merchant summoned him to the office , handed
him his check , which had previously been prepared , covering his salary to December 31,
1951 , and told him "I didn't want him anymore." Merchant admitted that he had
never previously discussed with Hupman the question of termination of the latter's
employment.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hertzler was not called to rebut Hupman's testimony and there was no showing
that Hertzler was unavailable to do so.
The undersigned, therefore, credits Hupman's testimony, and finds that Mer-
chant made the remarks on the occasions in question substantially as Hupman
testified. The record establishes, however, that Hupman was a supervisor at the
time Merchant made the remarks related above, and there was no showing that
Hupman communicated the substance of these remarks to any of Respondent
Company's employees. Under these circumstances, it is perhaps doubtful that
Merchant's remarks to Hupman constitute evidence of interference with, re-
straint, or coercion of employees in the exercise of the rights guaranteed by the
Act, within the meaning of Section 8 (a) (1), or illegal assistance and support to
Respondent Union, within the meaning of Section 8 (a) (1) and 8 (a) (2). Mer-
chant's remarks do, however, furnish substantial corroboration of evidence,
found elsewhere, that Respondent Company furnished illegal assistance and
support to Respondent Union, and thereby engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (2).
That Respondent Union, too, was fostering the impression that employees would
be required to sign checkoff authorizations in order to work for the Company is
evident from the following testimony. During the preelection campaign, Com-
mittee Member Houser had distributed union-designation cards at the plant. In
the period after the representation election and, according to her, before the
collective-bargaining agreement with the Amalgamated was executed, she also
distributed checkoff authorization cards which had been furnished her and other
members of the committee by Chairlady Blanchette. During this latter period,
she and Silverthorn, another member of the organizing committee, discussed the
checkoff authorization?' According to Houser, while she was soliciting employees,
in Silverthorn's presence, to sign the checkoff, Silverthorn told them, "If you
don't sign it will just be too bad for you." Houser testified, however, that neither
Silverthorn nor any other union representative had ever told her that she was
compelled to sign the checkoff, or that she would be discharged if she failed
to do so.
In November, at about the time the contract was signed, a conversation con-
cerning the checkoff took place between Vivian Sample and Silverthorn during a
noon recess. A group of employees were congregated nearby, but it is not certain
whether they heard the conversation. Vivian Sample testified that she had been
"holding out" against signing a checkoff, and that Silverthorn told her on this
occasion, "If you work here you are going to have to sign it." Sample replied
that she would consider the matter and decide what to do about it. She did not,
however, sign a checkoff at that time. During the same interval, according to
Sample, she also had a conversation with Houser. Clara Pierce, another em-
ployee, was standing nearby, but Sample could not testify whether Pierce over-
heard the conversation. Again, the discussion involved the signing of the check-
off. Sample testified that she had not yet actually seen the checkoff blanks, but
22 It can scarcely be contended, as Respondent Union appears to contend, that the com-
mittee members were discussing designation cards at this time, rather than checkoff author-
ization forms. It is clear from the record as a whole, including the testimony of union
representatives, that designation cards had been used exclusively during the early stages
of the organizational campaign preceding the representation election, primarily as a means
of establishing a sufficient showing to support the Union's petition for an election. After
the Union was certified as exclusive representative, it virtually abandoned the use of
designation cards except, as will later appear, in the solitary case of Louise Sample in a
final effort to enlist her membership , and utilized instead the checkoff authorization forms
as the means for designating the Union as representative and applying for membership in
that organization.
BAYLY MANUFACTURING COMPANY 1359
that Houser, who had some in her hand, made substantially the same remark that
Silverthorn had made to Sample earlier, "If you want to work here you just
might as well sign up." Sample still declined to sign but with the approach of the
December 1 deadline, she finally relented. On November 30, during the lunch
period while a group of employees were standing around one of the machines,
Alta Babcock, a member of the Amalgamated committee, passed a book of check-
off forms down the operators' line, and Sample signed a checkoff.
Respondent Union does not dispute that, as members of the organizing com-
mittee, Houser and Silverthorn were authorized to solicit employees to join
its organization and to procure the signing of checkoff authorizations. Whether
these committee members were acting on specific instructions from union repre-
sentatives, in advising employees that they would be required to sign such check-
offs in order to retain their jobs, or whether they did so out of a misconception
of the extent to which the Union could impose such requirement upon the em-
ployees, it is evident from the record that a widespread impression prevailed
among employees, of which Respondents could hardly have been unaware, that
employees were being told by representatives of both Respondents that they
would be required to sign a checkoff in order to work at the plant. Yet, Re-
spondent Union took no action to disabuse the employees of this impression or to
dissipate the effects of such statements. It is therefore found, on well-estab-
lished principles of agency, that the statements of these committee members
are attributable to Respondent Union, even though they may not have been
specifically authorized or, indeed, may have been expressly forbidden 23
The remarks imputed by Houser to Silverthorn, and by Vivian Sample to both
Silverthorn and Houser, are uncontradicted. Although the remark ascribed by
Houser to Silverthorn was less explicit than those imputed by Sample to Silver-
thorn and Houser, it can scarcely be doubted that the statement that it would
"just be too bad" for employees who did not sign the checkoff, constituted, in the
context in which the remark was made, no less a threat that employees who failed
to sign the checkoff would not be permitted to remain in Respondent Company's
employ than the explicit statement to that effect.
It is therefore found that by the statements of Committee Members Houser and
Silverthorn, detailed above, Respondent Union has restrained and coerced em-
ployees of Respondent Company in the exercise of rights guaranteed in Section
7, thereby violating Section 8 (b) (1) (A) of the Act.
It is further found, on the basis of the foregoing, and upon the entire record,
that by requiring and coercing employees to sign authorizations for the deduc-
tion of dues, initiation fees, and assessments, Respondent Company has further
violated Section 8 (a) (1) and (2), and Respondent Union has further violated
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.24
It should be noted, too, that the checkoff authorizations themselves contravened
the provisions of the Act on two counts. First, by including provision for the de-
duction of initiation fees and assessments as well as union dues, and second, by
providing that authorization for such deductions should be irrevocable "for the
period of one year or until the termination date of the collective bargaining agree-
ment between [the] Employer and the Union whichever occurs sooner," the em-
ployee further agreeing and directing that "this authorization shall be auto-
matically renewed and shall be irrevocable for successive periods of one year
each or for the period of each succeeding collective bargaining agreement between
[the] Employer and the Union whichever shall be shorter, unless written notice
24 See, e. g., Local No. 1150, United Electrical, Radio & Machine Workers of America,
et at. ( Cory Corporation ), 84 NLRB 972 , 978, and cases cited.
21 See Federal Stores Division of Speigel, Inc., et at., 91 NLRB 647.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is given by [the employee] to the Employer and the Union not more than twenty
(20) days and not less than ten (10) days prior to the expiration of each period
of one year or of each collective bargaining agreement between [the] Employer
and the Union, whichever occurs sooner. If a new worker : this authorization
becomes effective at the end of [the employee's] trial period." 25
In view of the Board's holding in Salant d Salant, Inc.," the undersigned makes
no specific finding that the failure to conform to the requirements of Section 302
constitutes a violation of Section 8 of the Act. However, because of the coercive
conduct in which both Respondents have been found to have engaged, in requir-
ing employees to sign the checkoff authorizations, the undersigned has found,
above, that the Respondents have violated the Act n
B. Discrimination in regard to hire and tenure of employment; attempt to cause
and causing of said discrimination
1. Louise Sample
Louise Sample had been employed by Respondent Company as an operator from
July 6, 1948, to January 2, 1952, when she was discharged under circumstances
related hereinafter. For about 43 years she had been a member of the Garment
Workers. Although employed during the period of the organizational campaign,
she testified that she had never actually seen an Amalgamated designation card
at the plant or, for that matter, anywhere else until she was shown a copy of such
card by a field examiner of the Board after her discharge. In view of the wide-
spread organizational activity at the plant, this testimony may be difficult to
believe. It becomes understandable, however, when viewed against the back-
ground of her long years of membership in the Garment Workers, which the
Amalgamated was seeking to unseat as bargaining representative. Vivian
Sample, Louise's sister, who made her home with her, testified that Louise de-
stroyed without opening all Amalgamated campaign literature addressed to her,
received in the mail.
Louise Sample denied emphatically that she had ever been personally solicited
to sign a designation card in favor of the Amalgamated during the entire pre-
election campaign, or at any other time thereafter. She did testify, however,
that after the representation election she was solicited to sign a checkoff
authorization by Blanchette, Silverthorn, and Houser, members of the Amalga-
mated organizing committee, as well as by Business Agent Roitman . She refused,
she testified, because of her objection to the checkoff but offered to pay union
u Section 302 of the Act provides :
(b) It shall be unlawful for any representative of any employees who are employed
in an industry affecting commerce to receive or accept , or to agree to receive or accept
from the employer of such employees any money or thing of value.
(c) The provisions of this section shall not be applicable . . . ( 4) with respect
to money deducted from the wages of employees in payment of membership dues in a
labor organization : Provided, That the employer has received from each employee, on
whose account such deductions are made, a written assignment which shall not be
irrevocable for a period of more than one year, or beyond the termination date of the
applicable collective -bargaining agreement , whichever occurs sooner ; . . . [ Emphasis
supplied.]
16 88 NLRB 816 , where the Board said, "In our opinion , the limitations on checkoff in
Section 302 were intended neither to create a new unfair labor practice , nor even to be
considered in determining whether checkoff violates Section 8 of the Act."
27 The ultimate disposition of this issue makes it unnecessary to decide whether, as the
General Counsel contends , the fact that $ 13 of the original $ 18 Initiation fee was appro-
priated by the Local to its building fund , constituted that portion of the initiation fee
an assessment , so as to render the checkoff unlawful on the further ground that it pro-
vided for the deduction of assessments as well as initiation fees and dues.
BAYLY MANUFACTURING COMPANY 1361
dues though not, as will later appear, the initiation fee. Sometime in November,
Houser approached Sample and told her, "If you work here you'll have to sign
it," referring, according to Sample, to the checkoff.
Sample attended the union meeting of employees in November. She testified
that she heard the proposed contract and wage rates thereunder discussed at this
meeting, but that the contract itself was not read to the assembled employees.
The preponderance of the evidence, however, establishes that the contract was,
in fact, read in its entirety during at least one of the union meetings. Since, as
she testified, she had left the meeting early, it is probable that the contract may
have been read in her absence. According to her, she at no time saw a copy of
the contract, except at a distance, when she was in Merchant's office, under
circumstances later detailed. She also attended the union meeting in December,
when Local 635 was organized and officers were elected. She did, however,
observe the notice posted on the plant bulletin board, and was told in discussions
with various members of the Amalgamated organizing committee that she would
be required to join that Union in order to work at the plant. She was aware
also, from general talk throughout the plant, that unless she joined the Amalga-
mated by December 1, she would be obliged to pay an $18 initiation fee in addition
to the usual dues.
On November 30, the last day on which employees were to be permitted to join
the Amalgamated without payment of initiation fees, Chairlady Blanchette
approached Sample about joining the Union. According to Blanchette, she went
to Sample's machine during the noon recess, with a checkoff form in her hand,
and asked her if she wanted to sign one. Blanchette did not testify that she
actually showed Sample the form and, according to Sample, Blanchette did not
do so. When Sample refused to sign the checkoff, Blanchette testified, she told
her "that if she didn't want to be a member that she'd have to pay an initiation
fee because the deadline was the first of December." Sample was apparently
unimpressed.
On December 4, Business Agent Roitman went to the plant during working
hours. After talking to various employees, he approached Sample at her machine
and inquired whether she intended to sign a checkoff. She told him that she
did not and expressed her indignation at his request because, she told him, she
regarded him responsible for a decrease in her earnings of $2.50 a day. 8
The same day, Blanchette testified," she went to Sample's machine with a
union-designation card, told her that it was "a membership card that would
show she belonged to the Amalgamated and that if she paid me $18.00 and $3.00
dues she would be in good standing." According to Sample, however, Blanchette
made no mention of a membership card, but continued to refer to the checkoff
authorization. Sample told her that she was willing to pay dues but would not
sign a checkoff. Blanchette, Sample testified, said that she could not accept
28 Sample claimed that the new piecework rates, provided for in the Amalgamated con-
tract, had caused this seduction in her earnings In an effort to provide further evidence
of assistance and support to the Union, the General Counsel attempted to establish that
the contract entered into between the Company and the Amalgamated was less favorable
to the employees than that which had previously existed between the Company and the
Garment Workers. Although there is a suggestion in the record that the earnings of
some employees, including Louise Sample, may have been less under the new piecework
rates than they had been under the previous contract because of the difference in method
of computation of rates under the respective contracts and the absence of adequate com-
parative data, the undersigned regards the evidence Insufficient to support a finding of
unlawful assistance on this ground.
"Blanchette fixed the date as sometime during the first or second week of December.
On the basis of the pertinent testimony of Merchant, Rottman , and Louise Sample, and the
relevant circumstances, the undersigned finds that the incident about to be described
occurred on December 4.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues from Sample unless she also paid the $18 initiation fee. When Sample
protested that other employees had not been required to pay the initiation fee
and stated that she expected the same treatment, Blanchette reminded her that
the concession had been extended only to employees joining before December 1.
Blanchette denied that tkere had been any discussion during this encounter con-
cerning a checkoff, insisting that she had merely requested Sample to sign a
designation card and that Sample had refused.
Upon an evaluation of the testimony of the persons involved, the circum-
stances regarding the Union's efforts to enforce the signing of checkoffs during
this period, as related elsewhere, and the reasonable inferences to be drawn
from the pertinent facts, the undersigned finds that the discussion between
Blanchette and Sample related primarily to whether Sample was entitled to join
the Union without payment of initiation fee, and that, with respect to the type
of application she was offered to sign at this time, Blanchette had offered her
a checkoff authorization rather than a designation card.
The same day Roitman delivered to Merchant duplicate checkoff slips signed
by all employees in the unit excepting Louise Sample, and notified Merchant
that an examination of his lists revealed that Sample had not joined the Union.
According to Merchant, he could recall making no comment. Rottman testified,
on cross-examination, that in discussing Sample's failure to join the Union, he
"mentioned to Mr. Merchant . . . the clause in the agreement pertaining to
people that are not members of the union after December the 1st," and referred
to paragraph 16, entitled "Union Membership."" Roitman further testified in
substance, that he also told Merchant that under the contract, employees, in-
cluding Sample, were required to join the Union by December 1, or risk dis-
charge-that "this was a union shop and under a union shop election and that
as such it becomes a requirement."' In view of Roitman's evident confusion
on the subject, it is not surprising that the impression employees had received
with regard to what the Union was requiring of employees was substantially in
accord with Roitman's original testimony concerning what he had stated to
Merchant.
Next day, December 5, during the noon hour, Merchant sent for Louise Sample
and told her that he understood she had refused to join the Amalgamated Sam-
ple denied this, stating that she had merely refused to sign a checkoff. Merchant
told her she could return to work but, according to her, not before he had read
her the union-security provisions of the contract with the Amalgamated °°
°° It will be noted, of course, that the pertinent closed-shop provisions, quoted elsewhere,
contain no such language.
31 On redirect examination by union counsel, however, Roitman further testified.
Q. Is it your recollection, Mr. Roitman, that the contract has a date, December 1st,
in it by which time an employee must join the union?
A. No.
Q. What was the import of the date, December 1, 1951?
A. That it was-the members at the November meeting, or they agreed that
anyone «ho has not joined by December 1, 1951, will be required to pay an initiation
fee, but that is not in the agreement.
Q. At the November meeting was anything said to the employees as to a date by
which they would have to join the Amalgamated or not be able to work at the plant?
A. No.
Despite the foregoing testimony, Roitman did not change his testimony regarding what
he had told Merchant during the discussion related in the text.
sx Merchant admitted this interview with Sample and the substance of the conversation,
in accordance with her testimony, but denied reading to her from the contract. Sample's
testimony impressed the undersigned as more plausible and more consistent with the pur-
pose of the interview, namely, to ascertain whether she had in fact refused to join the
Amalgamated, and to inform her of the provisions of the contract requiring membership
in the Union. It is, therefore, more probable that Merchant did read Sample the pertinent
union-security provisions, as she testified. The undersigned so finds.
BAYLY MANUFACTURING COMPANY 1363
Several days later, when Roitman and Blanchette again called on Merchant,
the latter told them of his discussion with Sample. According to Merchant,
Roitman said that Sample had a right to refuse to sign the checkoff, and that
all she was required to do was to join the Amalgamated. Roitman thereupon
instructed Blanchette to ask Sample to sign a union-designation card. Blanchette
approached Sample at her machine and, according to Blanchette, requested her
to sign a designation card, but Sample refused. Sample testified, however, that
Blanchette did not offer her a designation card to sign, but still insisted that she
sign a checkoff. On the basis of this conflicting testimony, and in view of the
discussion in Merchant's office before Blanchette approached Sample regarding
the latter's refusal to sign the checkoff, it is more probable that at this time
Blanchette was attempting to induce Sample to sign a designation card rather
than a checkoff. It is, however, equally probable that Blanchette failed to make
it entirely clear to Sample that she was merely being requested to sign a
designation card, as evidence of her willingness to join the Amalgamated, and
not a checkoff.
On another occasion in December, according to Roitman's testimony, the exact
date of which he could not not fix but obviously before December 19, Sample
was summoned to Merchant's office while Roitman was there. Roitman testified
that he asked her why she refused to "sign up-join the Union." Sample replied,
according to hint, that "she would pay her $3 00 dues but she wouldn't sign up."
He could not specifically recall whether Sample had said that she would not
sign the checkoff, but testified that he did not think she used that term. He
conceded, however, that he did not offer her a designation or membership applica-
tion card to sign at that time. He further testified that he did not think he replied
to her offer of the payment of dues, and that he could not recall whether the
subject of initiation fee was mentioned in this conversation.
About December 14, Roitman, and possibly Blanchette, called on Merchant,
informed him that Sample still refused to join the Union, and stated that Merchant
would be obliged to take action. A clay or two later, after conferring with
counsel, Merchant telephoned the office of the Amalgamated and told Business
Manager Posner that he had been advised to have the Amalgamated send Merchant
a letter requesting such action as the Union might desire.
Under date of December 19, 1951, Posner wrote Merchant :
We wish to call to your attention the fact that your employee, Louise
Sample, has to this date failed to pay her periodic dues of $8 for the first
month and the $3 each month thereafter, to the Los Angeles Joint Board,
Amalgamated Clothing Workers of America. Payment of such dues is
required by the Constitution and By-Laws of the Amalgamated Clothing
Workers of America. It is a condition of employment as set forth in our
Collective Bargaining Agreeplent.
We do, therefore, request that unless Louise Sample pays her dues as set
forth above by December 31, 1951, you terminate her employment.
Thank you for your consideration.
cc-Louise Sample"
The same day, during working hours, Roitman delivered a copy of the letter
to Sample, without comment.
38 Posner explained that it had been decided to reduce the initiation fee, as far as Sample
was concerned, to $5, which, together with the first month's dues of $3, accounted for the
total of $8 claimed to be due from Sample Sample testified that she learned, on December
210, through her sister, Vivian, of the reduction in the initiation fee, and that Blanchette
later confirmed that the fee had been so reduced
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Next day, Sample encountered Merchant in the plant and asked him "how
much had been taken out of the girls' checks," offering to pay the same amount.
Merchant told her that nothing had been taken out as yet, but that $3 was to be
deducted from the paychecks to be distributed the following day.
On December 24, Sample went to Blanchette's machine and again offered to
pay $3 to cover a month's dues. According to Sample, Blanchette told her that
she had been instructed not to accept dues from her unless she paid the sum of
$8. Blanchette admitted that Sample offered to pay her $3 as dues, which she
refused, stating that Sample would have to sign a membership card. According
to Blanchette, she, herself, made no mention of the $5 initiation fee, and pre-
sumably this was not mentioned by Sample.
On December 28, Blanchette called at Sample's home and, after some discus-
sion with Vivian Sample, Louise's sister, suggested privately to Vivian that she,
Blanchette, would pay one-half the initiation fee if Louise would sign a designa-
tion card. The women joined Louise in another part of the house where the
discussion was continued. Louise stated that she was willing to pay $3 as dues,
but Blanchette told her that she could not accept that amount-that Louise would
have to pay $8, $5 as initiation fee and $3 for the first month's dues. Blanchette
repeated the offer she had previously made to Vivian Sample to pay one-half of
the initiation fee for Louise, and Vivian offered to pay the remaining half if her
sister would join the Union. Louise remained adamant, stating that it was not
a question of the amount involved, but that she was unwilling to pay any more
than other employees had paid to join the Union.
On December 29, 1951, Sample dispatched, by registered mail, return receipt
requested, the following letter, addressed to Posner as manager of the Los Angeles
Joint Board, with copies to Merchant and William Downs, president of the
Company :
I have copy of your letter addressed to the management of the Bayly
Manufacturing Company, Long Beach, California, under date of December
19, 1951.
I have on several occasions tendered the periodic dues to your organiza-
tion to the representatives of your organization in the same amount that all
employees of the Bayly Manufacturing Company are compelled to pay for the
month of December, 1951, which your representatives have refused to accept.
This is to officially notify you, that as an employee of the Bayly Manu-
facturing Company, I hereby tender to pay the periodic dues of $3 for
December, the same as is uniformly required of the other employees of the
Bayly Manufacturing Company, Long Beach Plant, for December, 1951.
On January 2, 1952, during the lunch period, Merchant sent for Sample and
referring to the letter he had received from Posner, stated that he understood
she had received a copy of it. When she acknowledged she had, he told her that
he regretted having to terminate her employment but since she had failed to
join the Union, he had no alternative. Sample asked him if she required a letter
of some kind, but he told her that her paycheck was all that was necessary. He
handed her her check and her employment was thus terminated. She has not
been reinstated since.
The complaint, as amended prior to the hearing, alleges that Respondent
Company, in violation of Section 8 (a) (3), discharged Louise Sample on or
about January 2, 1952, and has since refused to reemploy her because "she
refused to sign an authorization to deduct dues, initiation fees and assessments
from her compensation, having reasonable grounds for believing that [member-
ship in Respondent Union] was not available to [her] on the same terms and
BAYLY MANUFACTURING COMPANY 1365
conditions applicable to other members"; and that Respondent Union, in viola-
tion of Section 8 (b) (2) and 8 ( b) (1) (A) on or about said date, caused and
has since continued to cause said Company to discriminate against her , "in the
manner and form set forth" in the allegations relating to Respondent Company.
The record , upon reconciliation of conflicting testimony , fairly establishes that,
beginning in November 1951 and until about December 7, 1951, various shop
committee members of the Amalgamated , including Chairlady Blanchette, as
well as Business Agent Roitman, had been attempting, by threats to her employ-
ment status , express or implied , to compel Louise Sample to sign a checkoff
authorization in favor of the Amalgamated . Statements by shop committee mem-
bers that she would not be permitted to work in the plant unless she signed a
checkoff were coupled with admonitions, either that she would be required to sign
such checkoff by December 1, or that unless she did so by that date, she would
be required to pay an initiation fee. The confusion and conflict in the testimony
renders it virtually impossible to determine precisely what she was told. But
this confusion which obviously existed in her mind , and in the mind of other
employees, as to what demands the Union was actually making with respect to
the requirement of union membership, was created by the conflicting statements
made to employees by various shop committee members, and apparently by the
union officials themselves, in the course of enforcing the union-security provisions,
recruiting the membership of the employees, and inducing them to sign check-
offs before the December 1 deadline. Committee members, called as witnesses, as
well as union officials, manifested evidence of this confusion in their testimony.
It is scarcely to be wondered, then, that the employees reasonably concluded,
from the welter of conflicting statements, that they were required to join the
Union and sign checkoff authorizations by not later than December 1, 1951, if
they expected to continue working at the plant. That these statements were
coupled with an offer to waive the initiation fee as an inducement to join be-
fore the deadline, did not neutralize the effect of the unlawful conduct.
In Louise Sample's case, it is apparent that she had reasonably been led to
believe, at least until December 7, when she was offered an opportunity to sign
a designation card, that she could not join the Union without signing a checkoff.
It is evident, too, that she was aware that unless she joined by December 1, she
would be required to pay an initiation fee. Be that as it may, the indisputable
fact is that there was not then in effect, nor until more than 5 months after her
discharge " a lawful union-security provision which would have permitted the
Union to require membership as a condition of employment. Even if such a
valid provision had existed, it would have afforded no sanction for imposing
the additional requirement that employees execute a checkoff as a prerequisite
to obtaining membership in the Union . Hence, because of the absence of a valid
union-authorization provision, Respondents could not have required membership
in the Union, much less the signing of a checkoff, as a condition of employ-
ment.
The allegations of the complaint with respect to Louise Sample, however, are
that she was discharged at the instance of the Union because she had refused
to sign a checkoff, Respondent Company having had reasonable grounds for
believing that membership was not available to her on the same terms and con-
ditions applicable to other members. The relationship between the latter portion
84 As will later appear, on May 29, 1952, Respondent Company and Respondent Union
executed an amendment to the collective-bargaining agreement, modifying the union-
security provisions to conform to the requirements of the Act. This, however, does not
relieve Respondents of the consequences of their prior unlawful conduct in entering into
and enforcing the illegal union-security provisions.
257965-54-vol. 103-87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this allegation and the former is somewhat obscure . The theory of the General
Counsel 's case, as it developed at the hearing , appears to be that because the
Union had required Sample, in addition to signing a checkoff , to pay an initiation
fee, which had not been required of other employees ( who had joined by the
December 1 deadline ), membership had not been available to her on the same
terms and conditions generally applicable to other members and, since Respond-
ent Company had reasonable grounds for believing that to be the fact, it could
not justify any discrimination against her for nonmembership in the Union.
In the view of the undersigned this theory has no application to the facts
found . We are not confronted , here , with a situation where a union increases
the initiation fee required as a condition of obtaining membership before the
effective date of a valid union-shop provision. This, the Board has held, a
union is privileged to do, under the proviso to Section 8 (b) (1) (A ) 35 "The
only limitation placed on the Union 's right to do so is contained in Section 8 (b)
(5), which prohibits 'excessive or discriminatory ' fees as a condition of becom-
ing a member only where a valid union-shop contract covering the employees is
in effect .s'S (Emphasis supplied.)
Inasmuch as there is no allegation here that the Union violated Section 8 (b)
(5), and since no valid union-shop provision existed in the case at bar, we do
not reach the question , and it is unnecessary to decide, whether, under a valid
union-shop agreement , a union is privileged to charge an initiation fee to em-
ployees who elect to wait the statutory 30-day grace period before joining the
union , while waiving the initiation fee in favor of those joining before the expi-
ration of that period . As has already been indicated , the absence of a valid
union-security agreement at the outset deprived the Union of the right to require
membership as a condition of employment . It is, therefore , immaterial whether
Louise Sample failed to become a member because she was unwilling to sign a
checkoff, which she reasonably believed the Union required , or because she was
unwilling to pay an initiation fee, which she believed she was not required to
pay. Nor is it material that on about December 7, 1951, after having insisted
that she sign a checkoff as a condition of membership , Respondent Union receded
from its position and offered her instead the opportunity of joining the Union
by merely signing a designation card since , under the existing union-security
provisions , Respondent Union could not have required her to become a member
of the Union as a condition of employment in any event.
Upon the basis of the foregoing , and upon the entire record , the undersigned
finds that by demanding and accomplishing the discharge of Louise Sample be-
cause of her failure to join the Union , at a time when no valid union -security
provision existed requiring membership in that Union as a condition of employ-
ment, Respondent Union has attempted to cause and has caused Respondent
Company to discriminate against an employee in violation of Section 8 (a) (3),
thereby engaging in unfair labor practices within the meaning of Section 8 (b)
(2) ; and by the foregoing conduct, by threatening her with loss of employment
if she refused to sign a check-off, and by notifying her that she was required
to join the Union as a condition of employment , has restrained and coerced
employees in the exercise of rights guaranteed in Section 7, thereby engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A ). The under-
as "Provided, That this paragraph shall no impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of membership
therein; .. .
" Ferro Stamping And Manufacturing Co., et al. 93 NLRB 1459 , 1464 , where the Board
also held that "as the Union did not violate the Act by increasing the initiation fee, it
was privileged to warn the employees of its intention to do so."
BAYLY MANUFACTURING COMPANY 1367
signed further finds that by acceding to said demand, and discharging, and
thereafter refusing to reinstate, said Louise Sample, Respondent Company has
discriminated in regard to the hire and tenure of employment of said employee,
thereby encouraging membership in a labor organization, in violation of Section
8 (a) (3) ; has accorded Respondent Union illegal assistance and support, in
violation of Section 8 (a) (2) ; and by the foregoing conduct, and by informing
her that she was required to join the Union as a condition of employment, has
interfered with, restrained, and coerced Respondent Company's employees in
the exercise of rights guaranteed in Section 7, in violation of Section 8 (a) (1)."
2. Vivian Allean Sample
Vivian Sample had been employed at Respondent Company's Long Beach plant
for more than 22 years, when she was discharged on May 13, 1952, about a month
before the hearing. There is no allegation or contention that her discharge
stemmed from any failure or refusal to join the Amalgamated, or to sign a check-
off authorization in favor of that Union.
The last day of Vivian Sample's employment was May 5, 1952. The following
day she telephoned Personnel Clerk Phil Marino that she was unable to report
for work, and told him that she would call him the next day if she found she
was still unable to go to work. She then visited her physician at the clinic,
remaining there until 5 p. in. She did not phone Marino the following day but,
the day after, sent Marino a letter from her doctor by one of the employees.
On the morning of May 7, Sample telephoned Marino to inquire whether he had
received the letter. He acknowledged that he had but told her that he could not
"accept it"-that he would require a diagnosis before he could grant her sick leave.
The same day, Sample's physician telephoned Marino and gave him his diagnosis
of her condition. On May 12, the physician mailed a letter to Marino giving him
his diagnosis in writing.
At about 9:30 on the morning of May 13, Marino telephoned Sample and
told her that since she had been absent "without sick leave five days," he would
have to terminate her employment. Sample asked him whether he had received
the doctor's report. He replied that he had not received a letter furnishing the,
diagnosis. When she remonstrated that the doctor had given him the diagnosis
orally over the telephone on May 7, Marino replied, "Yes, but I can't accept that.
I have to have it in writing for the records."
Sample did not communicate with Marino thereafter but next day, May 14,
called the office and requested her final paycheck and "discharge slip." The
office girl told her that she would mail her check, but that she would have to wait
for her "discharge slip." On May 17, Sample received her check in the mail
but not the "discharge slip." That was the last communication she had with
any representative of management.
87 The undersigned has not overlooked the fact that the allegations of the complaint,
with respect to Louise Sample, are based entirely on the contention that she was dis-
charged by the Company, at the behest of the Union, because of her refusal to sign the
checkoff, the Company, "having reasonable grounds for believing that [ membership] was
not available to [her] on the same terms and conditions generally applicable to other
members." Since the gravamen of the complaint underlying the entire proceeding is the,
execution and enforcement of unlawful union-security provisions , upon which the Union
superimposed, as a condition of membership, the requirement of signing a checkoff, the
discrimination against Louise Sample may be redressed under the broad allegations of the,
complaint, irrespective of whether the record supports a finding that the specific allega-
tions of the grounds of discrimination have been sustained . The issues respecting the
unlawful union-security provisions , and the circumstances regarding the discrimination
against Louise Sample having been fully litigated, any possible variance between the
allegations of the complaint and the proof in her case must be regarded as immaterial.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the next few days , Vivian Sample sent word through Helen Harrison,
an employee, to Chairlady Blanchette that she had been discharged . Blanchette
advised Sample , through Harrison , to file a formal grievance . On May 16, 1952,
Sample mailed a letter , by registered mail, return receipt requested , to Blanchette
in care of the Company, reciting in some detail the circumstances culminating in
her discharge and requesting that her grievance be taken up with management.
Upon receipt of the letter on May 20, Blanchette sent Sample a message, again
through Harrison, that Business Agent Roitman was out of town, was not ex-
pected until May 28, and that the matter would have to await his return . Accord-
Ing to Blanchette, Sample notified her through Harrison that that would be
satisfactory.
Roitman, who was at the Amalgamated convention at Atlantic City from
May 6 to May 16,1952, did not return until June 2. The following day, Blanchette
reported to him that Vivian Sample had been discharged and had filed a grievance
with the Union. Next day, Roitman, telephoned Merchant for an appointment
to discuss all pending grievances, without mentioning any names, and on June
6, 1952, the Friday before the hearing in this proceeding began, Roitman and
Blanchette met with Merchant at the plant. Roitman turned over Sample's
letter to Personnel Clerk Marino, with the request that he furnish him with
the information regarding her discharge. No further action was taken, how-
ever, and, according to Roitman, Sample's grievance and those of Clara Pierce
and another employee, were still pending at the time of the hearing.
Marino himself was not called to testify, and there was no showing that he
was unavailable at the time of the hearing. Testifying primarily on the basis
of entries in Sample' s personnel file, and reports made to him by Marino, Mer-
chant related that Sample had been on sick leave from July 23, 1950, to at
least September 15, 1950, although the actual date she returned to work did
not appear in the file. During 1951 "she was out several times but not any
great length of time." In January 1952, she was absent 1 day, in February,
2 days, presumably on sick leave, although this does not appear from her per-
sonnel file, and in March, from the 3rd to the 12th, due to an eye infection.
This represented her record of so-called "absenteeism" until her illness immedi-
ately preceding her discharge.
With regard to her last absence, Merchant testified, in substance, that Sample
"came in with a statement from the doctor that she would have to be absent
for a period of two to four weeks." She was told by Personnel Clerk Marino
that he would require a statement from the doctor specifying the nature of her
illness. Sample's physician telephoned Marino and indicated some reluctance
to furnish "the certificate," but stated that she was suffering from heart strain.
Marino , according to Merchant, instructed the physician to furnish the Company
with a statement to that effect but, Merchant testified, nothing further was heard
from Sample or her physician until the date of her termination on May 13.
Merchant's testimony on cross-examination, and the original entries in Sample's
personnel file, cast the matter in a somewhat different light. According to this
testimony, Merchant had instructed Marino to discharge Sample the day before
she was actually discharged, after Marino had reported to him the substance
of his conversation with Sample's physician. Merchant testified that he knew,
at the time he directed her discharge, that the physician had informed Marino
that Sample was ill, that it would be necessary for her to remain out of work
for from 2 to 4 weeks, and that the physician had confirmed this by letter, though
without stating the nature of her illness. The letter, requesting merely that
Sample be permitted to remain away from work for a period of 2 to 4 weeks,
BAYLY MANUFACTURING COMPANY 1369
bore the notation , admittedly in Marino 's handwriting, and apparently made at
the time of the telephone conversation with the physician, "heart strain."
Under date of May 12, 1952, Sample's physician wrote the Company, to the
attention of Marino, that his diagnosis of Sample's condition was "moderate
hypertension and symptoms and findings suggestive of a mild heart strain," on
the basis of which, he wrote, he had recommended that she remain away from
work for from 2 to 4 weeks. A handwritten notation on this letter indicated
that it had allegedly been received at 10 a. in., May 13, 1952. At 9: 30 that
morning, Marino had called Sample to notify her that she was discharged.
Under the heading "Remarks" in Sample's personnel file, after her job classi-
fication, rate, and name of supervisor, appears the following : "Date started
12-14-29. Date ending 5-13-52. Reason : Did not report. Failed to get leave
of absence, satisfactory statement from physician."
Although relying primarily on the foregoing as the reason for her discharge,
Merchant, in his testimony, furnished these additional reasons : "Well, I say this
without any malice or anything of that sort : Vivian Sample was more or less
disrespectful to some extent. She was more or less quietly [in] subordinate.*
She may or may not have meant some of the things she did, but nevertheless, the
condition did exist." According to Merchant, he had received complaints about
this from the foreladies "on more than one occasion," but he failed to testify
as to the number of occasions or the precise nature of the complaints. Nor did
he explain the cryptic expression "quietly insubordinate," or testify that he
had ever brought the complaints to Sample's attention. The latter's testimony,
that there had never been any complaints about her work during her long period
of employment, remained unchallenged. The undersigned is convinced that if
any complaints of the character described by Merchant actually existed, which
the record fails to support, they played no part in the decision to discharge her.*
With regard to Sample's alleged failure to obtain sick leave, there was no,
showing of any rule or policy requiring a doctor's certificate which contained a
diagnosis. The Company's contention, referred to in Sample's personnel file,
that she had "been through this procedure before on other occasions," and that
there was "no reason why she could not get the proper statement at the proper
time," appears to relate, so far as the record discloses, to her absence between
March 3 and March 12, 1952, because of an eye infection which, according to
entries in her personnel file, she claimed had been caused by her work. The
entries continue :
3-3-52 . . . Told her that she could not return to work unless she had a
proper release from doctor. PLM
3-7-52'0 Came in. Did not have proper release. Sent her back for another
one. PLM
3-17-52 Back to work. Had proper release from doctor.
This situation is entirely different from the one under consideration. The
former, involving a claim that Sample had sustained an eye infection as a result
of her work, reasonably justified the Company in requiring a "release" from her
°° The stenographic transcript of the proceedings erroneously gives the word as "sub-
ordinate." It is obvious from the context that the word actually used by Merchant was
"insubordinate." The transcript is hereby corrected accordingly.
sB Merchant also testified that he would not knowingly hire or retain in his employ a
person with a heart condition . Respondent Company did not contend , however , either at
the time of Sample 's discharge or at the time of the hearing , that that was a factor in
its decision to discharge her.
w This date appears erroneously in the transcript as May 7 , 1952 . The date is hereby
corrected to read March 7, 1952.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physician to show that she had recovered and was able to resume her work.
This can hardly furnish the basis for a contention that Sample should have been
aware that the Company claimed that employees desirous of obtaining sick leave
were required to furnish a written diagnosis by an attending physician. 91
Considering the many years of satisfactory service Sample had rendered and,
except for her absence on sick leave between July 23, 1950, and September 15,
1950, and the negligibly few absences thereafter, her exemplary attendance record
over a period of 22 years, the Company's position regarding her absence in May
1952 appears highly technical and specious.
The issue, however, is not whether the Company acted arbitrarily, unfairly,
or capriciously in discharging Vivian Sample, but whether it was motivated in
doing so by considerations proscribed by the Act. The allegations of the com-
plaint, as to her, are that Respondent Company discharged her, on or about
May 13, 1952, and has since failed and refused to reinstate her because she "aided
,the charging party in this proceeding and has aided her sister, Louise Sample,
in obtaining evidence to support her [Louise Sample's] position in this case," in
violation of Section 8 (a) (1) and (3) of the Act ; and that Respondent Union,
"working with the company, caused the dicharge of Vivian Sample" on or about
said date because she had "aided and assisted her sister, Louise Sample, and the
charging union in obtaining evidence to support their charges in this matter,"
in violation of Section 8 (b) (1) (A) and 8 (b) (2).
With respect to Respondent Union, the record is devoid of any evidence that
it caused or attempted to cause Respondent Company to discharge Vivian Sample,
or that it participated or played any part therein. On the contrary, the evidence
establishes that Respondent Union, or its officials, were wholly unaware that she
had been discharged until she notified them of that fact by the filing of a written
grievance. The evidence further shows that on his return from the Amalgamated
convention, and on learning of her discharge, Business Agent Roitman arranged
a grievance conference with General Manager Merchant, and that the grievance
was still pending at the time of the hearing. Moreover, the record reveals that
Roitman advised Sample that as a union member, she had a right to file a claim
with the Union for medical disability, and that she filed such a claim on the
closing day of the hearing. It is, therefore, found that there is no evidence
to support the allegations of the complaint, as amended, that Respondent Union
caused or attempted to cause Respondent Company to discriminate against Vivian
Sample in violation of the Act, within the meaning of Section 8 (b) (2) or 8 (b)
(1) (A), and it will be recommended that those allegations be dismissed.
With respect to Respondent Company, there is also a failure of proof of the
allegations against it. The most that this record reveals, apart from the rela-
tionship between Vivian Sample and Louise Sample, is the timing of the former's
discharge, several weeks after the issuance of the original complaint, and the
i1 Although Respondent Company did not specifically rely on the provisions of the
collective-bargaining agreement dated November 15, 19.51, relating to leaves of absence,
it may be noted that the contract contained the following:
22. LEAVE OF ABSENCE:
(a) In case of injury or illness substantiated by a doctor's written certificate that
gn employee is unable to perform his or her work, an appropriate leave or leaves of
absence for a total period not exceeding six months will be granted by the Employer.
Employees on leave of absence due to illness or injury shall notify the Employer
regularly during such leave of absence concerning the illness or injury. Return to
work after illness or injury shall be based on a written certification by a doctor that
the employee is physically able to handle his or her job.
Thus, it will be seen that, under the contractual leave-of-absence provisions in effect at
the time, employees were required to furnish a doctor's certificate, but there was no re-
quirement that the certificate contain a statement of diagnosis.
BAYLY MANUFACTURING COMPANY 1371
apparent unreasonableness of Respondent Company's grounds for her discharge.
While these factors may cast grave suspicion upon its motivation, they amount
to no more than surmise or speculation, and cannot furnish a basis for a finding
of the commission of an unfair labor practice.
Further evidence, however, was offered by the representative of the General
Counsel that, on Saturday, May 10, 1952, 3 days before Vivian Sample's discharge,
he went to Long Beach to interview some employees, in preparation of the case
for hearing. Vivian Sample had arranged for this interview at her home.
Although Saturday was not ordinarily a working day, these employees were
required to work on this day. None of the women who were to have been inter-
viewed appeared at Sample's home. Later that day, Vivian Sample telephoned
one of these women at her home, presumably to ascertain the reason they had
failed to appear.
In this posture of the evidence, the General Counsel offered to prove through
Vivian Sample that, on Saturday, May 10, 1952, after having assured Vivian or
Louise Sample that they would come to their home to be interviewed by the
General Counsel's representative, the women failed to appear ; that Vivian tele-
phoned Cleta De Roussee, one of these employees and incidentally an Amalga-
mated shop committee member, to find out why she had not appeared ; and that
the latter told her that she and "several of the other girls had been instructed
not to come." Asked whether he intended to prove the source of such instruc-
tions, General Counsel's representative stated that he did not. The offer of proof
was thereupon rejected. No attempt was thereafter made to connect Respondent
Company in any way with the failure of these women to appear for the inter-
view. Any inference therefore, which might have been warranted from such
evidence that in discharging Vivian Sample, Respondent Company did so to
retaliate against her for assisting in the prosecution of her sister's case, or of
the charging Union, is dissipated.
Upon the basis of the foregoing and the entire record, the undersigned con-
cludes that the allegations of the complaint, as amended, against Respondent
Company, with respect to Vivian Sample, have not been sustained, and it will,
therefore, be recommended that those allegations be dismisssed.
C. Amendment of collective-bargaining agreement, modifying union-security
provisions
On April 21, 1952, 3 days after the issuance of the original consolidated com-
plaint," Union Manager Posner mailed Merchant a copy of a proposed modifica-
tion of the union-security provisions, contained in the contract, dated November
15, 1951, with the following covering letter :
I am enclosing a copy of a proposed modification of Section 16 of our
Contract, entered into on the 15th day of November, 1951.
As you know, it has always been our intention to comply with the National
Labor Relations Act of 1947, although it would appear that our previous
union security clause has been ambiguous and subject to misunderstanding.
It has always been our intention to follow the statute. However, to clear
up any misunderstanding, and to put the oral agreement of the parties into
writing, we propose the enclosed written modification of the Contract. Nat-
urally we have no objection to the employment of any individual by your
Company as long as the terms of this Contract are followed.
A2 According to the original return receipts received in evidence, service of the consoli-
dated complaint and notice of hearing was made on Respondent Company on April 19,
1962, and on Respondent Union on April 21, 1952. Service of the original charge had been
made on both Respondents on January 10, 1952.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 29, 1952 , pursuant to the proposed modification , Respondents executed
an amendment to the existing collective -bargaining agreement , substituting the
following union-security provisions :
16. UNION MEMBERSHIP:
All employees shall be required to join the Union after a 30-day period
following their employment or the effective date of this Agreement, which-
ever is later, and shall remain members in good standing of the Los Angeles
Joint Board, Amalgamated Clothing Workers of America, as a condition of
employment. Additional time to assure ability of new employees may be
requested by the Company and may be granted by the Local Union.
The record fails to disclose, however, that employees or members of the Union
were notified by either Respondent of the change in the union-security require-
ments. Nor, in contrast to the situation regarding the original union-security
provisions, was there any showing that notices were posted on plant bulletin
boards advising employees of the change or announcing the Union's alleged
policy of complying with the Act, as stated in its self-serving statements in the
letter proposing the amendment. Under these circumstances, it cannot be suc-
cessfully contended that Respondents effectively dissipated the effects of their
prior unlawful conduct merely by executing an amendment to the original illegal
union-security provisions. Consideration is given, however, to the Respondents'
conduct in amending the contract, in the section below entiled "The Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III, above, occurring in
connection with the activities of Respondent Company, described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act. It has been
found that, by entering into an illegal union-security contract on November 15,
1951 , and enforcing and giving effect to said contract until May 29, 1952,
Respondent Company has violated Section 8 ( a) (1), (2), and ( 3) , and Re-
spondent Union , Section 8 (b) (1) (A) and (2 ) of the Act. It has further been
found that by said conduct , and by statements of responsible management
officials , concerning the requirement for joining the Union and the signing of
checkoff authorizations , Respondent Company has interfered with , restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7, and
has furnished illegal support and assistance to Respondent Union in violation
of Section 8 (a) (1) and ( 2), respectively . Normally , it would be recommended
that Respondent Company withdraw and withhold recognition from said Re-
spondent Union , and cease giving effect to its contract with that labor organiza-
tion, dated November 15, 1951 , or to any modification , extension , supplement, or
renewal thereof unless and until said labor organization shall have been certified
by the Board . Under the facts of this case , however , the usual remedy would
appear to be inappropriate. Respondent Union was duly certified as the col-
lective-bargaining agent of Respondent Company 's employees upon a petition
duly filed and an election duly held , with a rival union on the ballot. It is
evident, therefore , that Respondent Union represented and continued to represent
BAYLY MANUFACTURING COMPANY 1373
an uncoerced majority of Respondent Company's employees. Thereafter, fol-
lowing an election held for the purpose, Respondent Union was authorized to
negotiate a union-security agreement. Although the union-security provisions
contained in that agreement failed to conform to the requirements of the Act.
the parties on May 29, 1952, executed an amendment to the agreement, modifying
the union-security provisions to conform to the Act. While it has been found
that Respondents failed to publicize this fact to the employees and union
members, the undersigned does not regard that effectuation of the policies of the
Act requires that Respondent Union be deprived of its representative status. It
will, therefore, not be recommended that Respondent Company withdraw and
withhold recognition from said Respondent Union.
It has also been found that Respondent Company has discriminated in regard
to the hire and tenure of employment of Louise Sample. It will, therefore, be
recommended that said Respondent offer her immediate and full reinstatement
to her former or substantially equivalent position," without prejudice to her
seniority and other rights and privileges.
Having further found that Respondent Union caused Respondent Company to
discharge said Louise Sample, it will be recommended that Respondent Union
notify Respondent Company, in writing, that it withdraws its objections to her
employment and requests Respondent Company to offer her immediate and full
reinstatement to her former or substantially equivalent position, without preju-
dice to her seniority and other rights and privileges.
Having found that both Respondents are chargeable with the discrimination
suffered by said Louise Sample, it will be further recommended that Respondent
Company and Respondent Union, jointly and severally, make said Louise Sample
whole for any loss of pay she may have suffered as a result of the discrimination
against her, less her net earnings." Liability of Respondent Union for back pay
shall terminate 5 days after Respondent Union shall notify Respondent Company
that it withdraws its objection to her employment " Loss of pay shall be com-
puted in accordance with the policy of the Board enunciated in F. W. Woolworth
Company, 90 NLRB 289, and, in accordance with said policy, it will also be recom-
mended that Respondent Company be ordered to make available to the Board
upon request payroll and other records to facilitate the checking of the amount
of back pay due.
Having further found that Respondent Company and Respondent Union re-
quired and coerced employees to sign authorizations for the deduction of dues
and initiation fees from their compensation, as a condition of membership in
Respondent Union and, hence, as a condition of employment with Respondent
Company ; and having found that such checkoff authorizations exceeded the per-
missible limits of the Act, it will be further recommended that Respondent Com-
pany and Respondent Union cease and desist from requiring employees to
authorize such deductions and, jointly and severally, make whole all employees
whose dues and initiation fees were checked off between November 15, 1951, and
As The Chase National Bank of the City of New York San Juan, Puerto Rico, Branch,
65 NLRB &27.
"Crossett Lumber Company, & NLRB 444.
As The undersigned had considered the Union's statement in its letter to the Company,
dated April 21, 1952, in which it proposed the modification of the union -security pro-
visions , that it had "no objection to the employment of any individual by [the ] Company
as long as the terms of this Contract are followed ," and has also considered Union Manager
Posner 's testimony that the Union would have no objection to Louise Sample's employ-
ment by the Company provided she joined the Union , and that it would not require her to
sign a checkoff in order to do so . In the opinion of the undersigned , however, these state-
ments are insufficient to warrant a departure from the Board's usual remedy in such case.
Cf. Acme Mattress Company, Inc., supra.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 28, 1952, a date 30 days from the effective date of the amendment to the
collective-bargaining agreement , by reimbursing them for the amount thus
deducted.
Having found that Respondent Company has not discriminated in regard to the
hire and tenure of employment of Vivian Allean Sample , within the meaning of
Section 8 (a) (3), and that Respondent Union has not caused or attempted to
cause Respondent Company to discriminate against said Vivian Sample within
the meaning of Section 8 (b) (2) and 8 ( b) (1) (A) of the Act, it will be recom-
mended that those allegations of the complaint , as amended , be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONcLusIIONs OF LAW
1. Los Angeles Joint Board , Amalgamated Clothing Workers, CIO , and United
Garment Workers of America , AFL, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By executing the collective -bargaining agreement , dated November 15, 1951,
containing illegal union -security provisions , and by enforcing and giving effect
to said provisions from said date to May 29, 1952 , Respondent Company has
engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2),
and (3 ) of the Act.
3. By requiring and coercing employees to sign authorizations for the deduc-
tion of dues and initiation fees from their compensation ; requiring that they
become and remain members of Respondent Union , threatening them with dis-
charge if they failed to do so, and by the statements , acts, and conduct of its
supervisors or officials , detailed herein , Respondent Company has interfered
with , restrained , and coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act , and has furnished illegal support and assistance
to Respondent Union, thereby engaging in unfair labor practices , within the
meaning of Section 8 (a) (1) and (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment and
the terms and conditions of employment of Louise Sample to encourage mem-
bership in a labor organization , Respondent Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act, has fur-
nished illegal support and assistance to Respondent Union, thereby violating
Section 8 ( a) (2), and has interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7, thereby engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By executing the collective-bargaining agreement with Respondent Com-
pany, dated November 15, 1951 , containing illegal union -security provisions,
and by enforcing and giving effect to said illegal provisions from said date to
May 29, 1952, Respondent Union has caused and attempted to cause Respondent
Company to discriminate against employees in violation of Section 8 (a) (3),
and has restrained and coerced employees of Respondent Company in the exercise
of rights guaranteed in Section 7 of the Act , thereby engaging in unfair labor
practices within the meaning of Section 8 (b) (2) and 8 ( b) (1) (A) of the Act.
6. By attempting to cause and causing Respondent Company to discriminate
against Louise Sample, in violation of Section 8 (a) (3) of the Act, Respondent
Union has engaged in unfair labor practices within the meaning of Section
8 (b) (2), and has restrained and coerced employees of Respondent Company
in the exercise of rights guaranteed in Section 7, thereby engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A ) of the Act.
CALIFORNIA PORTLAND CEMENT COMPANY 1375
7. By requiring and coercing employees of Respondent Company to sign
authorizations for the deduction of dues and initiation fees as a condition of
membership in Respondent Union ; requiring, between November 15, 1951, and
June 28, 1952, that they become and remain members of said Union ; threatening
them, during said period, with discharge if they failed to do so; and by the
statements of its representatives or officials, detailed herein, Respondent Union
has restrained and coerced employees in the exerelse of rights guaranteed in
Section 7 of the Act, and has thereby engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
9. Respondent Company has not discriminated in regard to the hire and tenure
of employment or the terms and conditions of employment of Vivian Allean
Sample, within the meaning of Section 8 (a) (3).
10. Respondent Union has not caused or attempted to cause Respondent Com-
pany to discriminate in regard to the hire and tenure of employment of Vivian
Allean Sample in violation of Section 8 (a) (3), within the meaning of Section
8 (b) (2) and 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication in this volume.]
CALIFORNIA PORTLAND CEMENT COMPANY and UNITED CEMENT, LIME &
GYPSUM WORKERS INTERNATIONAL UNION , LOCAL No . 89. Case No.
21-CA-1.77. March 31, 1953
Supplemental Decision and Order
On December 29, 1952, the Board issued its Decision and Order
in the above-entitled proceeding,'- finding that the Respondent had
violated and was violating Section 8 (a) (5) and (1) of the Act.
Thereafter, on February 20, 1953, the Respondent filed a motion for
reconsideration, requesting the Board to reconsider its foregoing
Decision and Order, that the case be referred to the full Board, and
that the complaint be dismissed in its entirety.
Upon the record, the Board 2 makes the following additional find-
ings :
1. The Respondent contends that the charging Union was not in
compliance with section 9 (f) and (g) of the Act at the time of the
issuance of the complaint on February 1, 1952. It is well established
that compliance is a matter for administrative determination and is
not an issue litigable by the parties. Moreover, we are administra-
tively satisfied that the Union was in compliance when the complaint
was issued.
2 101 NLRB No. 232.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Styles and Peterson],
103 NLRB No. 126.