Maremont Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 631 (N.L.R.B. 1965)

THE GABRIEL DIVISION OF THE MAREMONT CORP. 631
There is no evidence that Respondent engaged in similar conduct subsequent to
the settlement and certainly no evidence of subsequent similar conduct constituting
an unfair labor practice. In accordance with long-settled Board policy,
to honor settlement agreements when they have been reached with concurrence
or approval of an agent of the Board, unless the agreement has been breached
or unless the alleged unfair labor practices have been continued in such a way
that it seems necessary to the Board to go behind the agreement in order to
effectuate the policies of the Act.14
I consider myself precluded from consideration of these incidents as separate unfair
labor practices 15 and shall make neither findings nor recommendations concerning
them.
Having found that none of the conduct alleged in the complaints constitutes unfair
labor practices, I shall recommend that the complaints be dismissed.
On the basis of the foregoing findings of fact, and upon the entire record in this
case, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent's discharge of Paul Harlan was not an unfair labor practice within
the meaning of Section 8(a) (3) or (4) of the Act.
4. Respondent's discharge of Allen Maxwell was not an unfair labor practice
within the meaning of Section 8 (a) (3) or (4) of the Act.
5. Respondent did not engage in unfair labor practices within the meaning of
Section 8 (a) (1) as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that each of the complaints herein be dismissed.
14 Wooster Brass Company, ,80 NLRB 1633, 1634; see also Sigo Corporation, 146 NLRB
1484.
15 As noted above, In making findings on the allegations of unfair labor practices In the
discharge of Paul Harlan and Allen Maxwell, I have assumed Respondent's general
union animus.
The Gabriel Division of the Maremont Corporation and Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Teamsters Union Local No. 293 and
Joseph Razum
The Gabriel Division of the Maremont Corporation and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Teamsters Union Local No. 293 and
Anthony Felice. Cases Nos. 8-CA-3209, 8-CB-733, 8-CB-762,
8-CA-3314, and 8-CB-766. June 28, 1965
DECISION AND ORDER
On June 10, 1964, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
Union had engaged in and was engaging in certain unfair labor prac-
153 NLRB No. 53.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that both Respondents
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed with
respect to the latter allegations. The General Counsel and the Charg-
ing Parties filed exceptions to the Trial Examiner's Decision insofar
as the Respondents were found not to have violated the National Labor
Relations Act, as amended, and filed briefs in support thereof. No
exceptions were filed by the Respondents.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modification.'.
The Trial Examiner found that the Respondent Union did not
unlawfully cause the discharge of Donald Rice and that the Respond-
ent Company did not unlawfully discharge Rice. We disagree.
Within the grace period allowed by the union-security provision of
the collective-bargaining agreement between the Company and the
Union, Rice made what the Trial Examiner found, and we agree, was
valid tender of the dues and initiation fee which the Union could law-
fully demand. The Union, however, refused such tender. Instead,
the Union offered to forebear enforcing the union-security clause if
Rice would pay dues from the effective date of said clause and agree
in writing to pay, at some indeterminate date in the future, an initia-
tion fee in such amount (not specified) as the Board would ultimately
find to be lawful. Rice was discharged upon the request of the Union
after he refused to sign an affidavit incorporating the foregoing
conditions.
The record is devoid of any evidence that Rice had, prior to his dis-
charge, revoked his previous tender or that he was unwilling to make
another tender of the proper amounts which the Board has found could
be lawfully demanded from his for initiation fees and dues. The
' Inasmuch as the Respondents have not excepted to the violations found by the Trial
Examiner , we adopt pro foram the findings, conclusions , and recommendations of the Trial
Examiner pertaining thereto.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 633
Respondent Company had full knowledge of the circumstances sur-
rounding Rice's tender and the intervening events leading up to his
discharge, and itself prepared the affidavit for Rice's signature.
The Act permits a union lawfully to insist that an employer dis-
charge an employee where there exists a valid union-security clause
only where the employee has failed to tender the initiation fee and dues
properly owing to the union as a consequence of that clause. Similarly,
a company may lawfully accede to a request from a union to discharge
an employee only under such circumstances. In the instant case, how-
ever, we find, contrary to the Trial Examiner, that the Respondent
Union violated Section 8(b) (2) and (1) (A) of the Act by requesting
Rice's discharge solely because of his failure to execute the affidavit
and although Rice had validly tendered the amounts appropriately
due the Union .2 Correspondingly, the Respondent Company violated
Section 8(a) (3) and (1) by discharging Rice at the Union's request.
THE REMEDY
Having found that the Respondent Company discharged employee
Rice in violation of Section 8(a) (3) and (1) of the Act, and that the
Respondent Union violated Section 8(b) (2) and (1) (A) by unlaw-
fully causing Rice's discharge, we shall order that the Respondents
cease and desist from such unlawful conduct and post appropriate
notices. We shall also require the Respondent Company to offer Don-
ald Rice immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other
rights and privileges. We shall further require the Respondents,
jointly and severally, to make employee Rice whole for any loss of
earnings he may have suffered by reason of the discrimination against
him by payment to him of money equal to that which he would have
earned as wages from the date of his discharge to the date of the offer
of such reinstatement, less his net earnings during said period, in the
manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and
with interest on the backpay due in accordance with Board policy set
out in Isis Plumbing & Heating Co., 138 NLRB 716. The Respondent
Union may terminate its liability for further accrual of backpay by
notifying the Respondent Company, in writing, that the Respondent
Union has no objection to Rice's reinstatement. The Respondent
Union shall not thereafter be liable for any backpay accruing after 5
days from the giving of such notice. Absent such notification, the
Respondent Union shall remain jointly and severally liable with the
Respondent Company for all backpay to Rice which may accrue there-
after until the Respondent Company complies with the Order herein.
a Cf. Union Starch cE Refining Company, 87 NLRB 779, enfd. 186 F. 2d 1008 (C.A. 7),
cert. denied 342 U.S. 815.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ADDITIONAL CONCLUSIONS OF LAW
Upon the foregoing findings and the entire record in this case, we
hereby delete the Trial Examiner's Conclusions of Law Nos. 4 through
6, and adopt new Conclusions of Law Nos. 4 through 6 as follows :
4. By discharging Donald Rice for discriminatory reasons, the
Respondent Company violated Section 8(a) (3) and (1) of the Act.
5. By attempting to cause and causing the Company so to discrimi-
nate against Rice, the Respondent Union violated Section 8 (b) (2) and
(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, The Gabriel Division of the Maremont Corporation,
Cleveland, Ohio, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Teamsters Union Local No. 293, or any other labor organization of its
employees, by discharging employees or in any other manner discrimi-
nating against any of its employees in regard to hire or tenure of
employment or any other term or condition of employment, except to
the extent permitted by Section 8 (a) (3) of the Act, as amended.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer employee Donald Rice immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole,
jointly and severally, with Respondent Teamsters Union Local No.
293, for any loss of pay he may have suffered by reason of the discrimi-
nation aginst him, in the manner set forth above in the section entitled
"The Remedy."
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
THE GABRIEL DIVISION OF THE MAREMONT CORP . 635
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post at its plant in Cleveland, Ohio, copies of the attached
notice marked "Appendix A." 3 Copies of said notice, to be furnished
by the Regional Director for Region 8, shall, after being duly signed by
the Company's representative, be posted by the Company immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
FURTHER, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, International Brotherhood cf
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Teamsters Union Local No. 293, Cleveland, Ohio, its officers, agents,
and representatives, shall take the action set forth in the Trial Exam-
iner's Recommended Order, as so modified :
1. Add the following paragraph 1(c) to the Trial Examiner's Rec-
ommended Order, the present paragraph 1(c) being relettered 1(d) :
"(c) Causing or attempting to cause The Gabriel Division of The
Maremont Corporation, its officers, agents, successors, or assigns, to
discharge or otherwise discriminate against Donald Rice, or any other
employee, for a reason other than failure to tender or pay the periodic
dues and initiation fee uniformly required as a condition of acquiring
or maintaining membership in the Respondent Union."
2. Add the following as paragraphs 2(b) and 2(c) to the Trial
Examiner's Recommended Order, the present paragraph 2(b) and
those subsequent thereto being consecutively relettered :
"(b) Notify Respondent, The Gabriel Division of The Maremont
Corporation, with a copy to Donald Rice, that it withdraws its objec-
tions to the Company's employing Donald Rice and will not oppose his
reinstatement."
"(c) Jointly and severally with The Gabriel Division of The Mare-
mont Corporation make whole Donald Rice for any loss in pay sus-
tained by reason of his discharge on June 27, 1963, in the manner set
forth in the section of the Board's Decision entitled `The Remedy.' "
3 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
`636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The present paragraph 2 (c) of the Trial Examiner's Recom-
mended Order shall be amended by deleting therefrom the words "if
willing."
4. The Appendix attached to the Trial Examiner's Decision shall
be amended as follows :
After the second indented paragraph, add the following paragraphs :
WE WILL NOT cause or attempt to cause The Gabriel Division of
The Maremont Corporation to discharge or otherwise discrimi-
nate against Donald Rice or any other employee under section 2
of our contract with The Gabriel Division of the Maremont Cor-
poration because of nonmembership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Teamsters Union Local No. 293, where that employee
has been denied membership for a reason other than failure to
tender the uniform dues and initiation fee, or where membership
has not been made available to him on the same terms and condi-
tions as all other members. For that purpose, under the contract
as presently in force, an employee will be deemed in compliance
with section 2 thereof, if he pays or tenders the $15 initiation fee,
or any reasonable initiation fee imposed by the Union in lieu
thereof, and the regular monthly dues of that Union either out-
right or by keeping his checkoff authorization for the amount of
the Union's regular monthly dues in force.
WE WILL write The Gabriel Division of The Maremont Cor-
poration and Donald Rice that we withdraw our objection to its
employment of Rice or to his reinstatement, and WE WILL, jointly
and severally, with The Gabriel Division of The Maremont Cor-
poration, make him whole for all pay (with interest thereon)
that he lost by reason of his discharge on June 27, 1963.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations of the Act not found
herein.
APPENDIX A
To ALL EMPLOYEES OF THE GABRIEL DIVISION OF
THE MAREMONT CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against Don-
ald Rice or any other employee under section 2 of our contract
with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Teamsters Union Local No.
293, because of nonmembership in the Union, where that employee
THE GABRIEL DIVISION OF THE MAREMONT CORP. 637
has been deprived of membership for a reason other than failure
to tender the uniform dues and initiation fee, or where member-
ship has not been made available to him on the same terms and
conditions as all other members. For that purpose, under the
contract as presently in force, an employee will be deemed to be
in compliance with section 2 thereof, as long as he continues to
tender the $15 initiation fee, or any reasonable initiation fee
imposed by the Union in lieu thereof, and the regular monthly
dues of that Union, either outright or by keeping his checkoff
authorization for the amount of the Union's regular monthly
dues in force.
WE WILL offer immediate and full reinstatement to Donald
Rice to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and AVE
WILL jointly and severally with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Teamsters Union Local No. 293, make good to him with interest
all pay he lost by reason of his discharge on June 27, 1963.
THE GABRIEL DIVISION OF THE
MAREMMION T CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-In the event the above-named employee is presently serving
in the Armed Forces of the United States we will notify him of his
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board' s Regional
Office, Room 720, Bulkley Building, 1501 Euclid Avenue, Cleveland,
Ohio, Telephone No. 621-4465, if they have any question concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed on various dates between July 8 and
October 14, 1963, an order consolidating the above -numbered cases, an amended con-
solidated complaint , and a notice of hearing were duly issued on December 31, 1963.
The complaint alleges that The Gabriel Division of The Maremont Corporation,)
herein sometimes called the Company , has engaged in and is engaging in unfair labor
I The complaint herein was amended at the hearing to name The Gabriel Division of
The Maremont Corporation as the Respondent Employer in the place of its predecessor
The Gabriel Company Automotive Division.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8 (a) (1) and ( 3) of the National Labor Rela-
tions Act, as amended, herein called the Act, and that International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Union
Local No. 293, herein sometimes called the Union or Teamsters, has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A), (2),
and (5) of the Act. The respective Respondents duly filed answers which, in sub-
stance, deny that they had engaged in the alleged unfair labor practices. Thereafter,
a hearing was held before Trial Examiner Herbert Silberman at Cleveland, Ohio,
on various days between February 3 and 13, 1964. Oral argument by General Coun-
sel was heard at the close of the hearing; all other parties waived the opportunity
afforded them to engage in oral argument. Briefs have been received from Teamsters,
the Company, and Charging Parties, which have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Gabriel Division of The Maremont Corporation is the successor to the business
of The Gabriel Company Automotive Division. The Company, an Illinois corpora-
tion, at its plant in Cleveland, Ohio, is engaged in the manufacture of shock absorbers
for the automotive industry. In the course and conduct of its business operations,
the Company annually ships products valued in excess of $50,000 from its Cleveland
plant to customers located in States of the United States other than the State of
Ohio. The parties stipulated, and I find, that the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Following bitterly contested elections,2 the Board on November 28, 1962, certified
the Teamsters as the collective-bargaining agent of a unit of production and mainte-
nance employees at the Company's Cleveland plant. Prior thereto Local 233,
District No. 54, International Association of Machinists, AFL-CIO, herein called the
IAM, had been the representative of the same unit of employees.
On December 16, 1962, Teamsters adopted a resolution, herein called the resolu-
tion, establishing monthly dues and an application or initiation fee applicable to
employees to the Company who seek to become members of the Union. The resolu-
tion fixed dues at $4 per month and established an initiation fee of $15 but provided
that: (i) the fee would be waived for employees who join Teamsters during the
month of December 1962; (ii) the fee would be increased by $4 per month for
employees who did not join Teamsters by December 31, 1962 (i.e., an employee who
should seek to join the Union in January 1963 would be required to pay a fee in
the amount of $19 or if he should seek to join Teamsters in February 1963 he would
be required to pay a fee of $23, etc.); and (iii) the fee also would be waived for
employees who, as of December 31, 1962, were in service, on layoff, industrial leave
of absence, or sick leave, and who join Teamsters within 30 days after their recall
or return to work, but for any such employees who do not join within said 30-day
period the basic fee of $15 would be increased by $4 per month for each month
beginning 30 days after their recall or return to work. The resolution does not
describe the initiation fee required to be paid by persons hired after December 31,
1962, or by employees who, as of December 31, 1962, were not included within the
bargaining unit but thereafter are returned or transferred to positions within the unit.
On May 1, 1963, the Company and Teamsters entered into a collective-bargaining
agreement, herein called the contract, containing a union-security clause, which inso-
far as is pertinent herein, required, as a condition of employment, membership in
the Union 30 days after the effective date of the agreement,3 and which provided
that no employee shall be discharged for failure to comply therewith until he shall
2 See The Gabriel Company Automotive Division, 137 NLRB 1252
2 The Union-security clause, Section 2 of the Contract, was modified by a supplemental
agreement, dated October 5, 1963. The changes effected by the modification are not mate-
rial Insofar as the issues in this proceeding are concerned
THE GABRIEL DIVISION OF THE MAREMONT CORP. 639
have received a written notice from the Union, with a copy to the Company, advising
him of his failure to comply and until he shall have had 7 days in which to bring
himself into compliance. The clause requires the employee to give satisfactory evi-
dence of compliance to the Employer's director of personnel within the 7-day period.
This case arises out of the refusal of the following 21 employees, herein sometimes
referred to as the dissidents or the group, who did not join Teamsters in December
1962, to pay an initiation fee in the amount demanded by Teamsters during the 30-day
grace period provided for in the contract. The employees referred to are:
Carl Ackerman Lawrence Halk George McMurtrie
John Ackerman Earnest Hartup Tranquillo Meneghini
Albert Ayer Victor Jakopic Chester Olin
William Christen Alfred Johnson Joseph Pajestka
Robert Dailey Clarence Kaib Joseph Pusterhofer
Joseph Demojzes Catherine Krynitsky Joseph Razum
Anthony Felice Anthony Mandato Donald Rice
This group, most of whom were staunch supporters of the IAM, looked upon
Joseph Razum, a former JAM chief steward, as their leader and employed Joseph E.
Finley as their attorney. Following a common plan of action, on May 31, 1963,
the last day on which they could make timely tender of their union dues and initia-
tion fees under the union-security clause of the contract, most of the dissidents in
groups of two or three went to the union office in the plant and tendered $19, pur-
porting to represent payment of 1 month's dues of $4 and an initiation fee of $15,
which amount they had been advised by Attorney Finley was the proper, lawful
amount of dues and initiation fees. These tenders were refused. The Union claimed
the initiation fees tendered by the dissidents was insufficient because the fee was $35
(computed, as per the resolution, as follows: $15 plus $4 for each of the months
between January and May, inclusive).
General Counsel contends that in the circumstances of this case the graduated
initiation fee was unlawfully discriminatory.4 General Counsel also contends that a
further violation arises from the fact that in May 1963 employee Stephen T. Phillips
paid to Teamsters the sum of $39 which represented $4 as dues for the month of
May 1963 and an initiation fee of $35.
On June 7, 1963, Teamsters wrote a letter to each of the group advising them that
they had not complied with the union-security clause of the contract and that they
would be subject to discharge if they fail to bring themselves into compliance within
7 days. They were also advised to give satisfactory evidence of compliance to the
Company's director of personnel within the 7-day period. Copies of the letters were
served upon the Company.
On June 17 a meeting was held in the Company's conference room at which were
present 20 employees of the group (Clarence Kaib was absent), their attorney,
Joseph E. Finley, Howard Hughes, director of employee relations, and Theodore M.
Mann, attorney for the Company. Edward Abranovich and Nick Smiklas were also
present as observers for the Teamsters. A stenographic transcript of the transactions
at the meeting was made. In response to an inquiry from Mann both Abranovich and
Finley affirmed that the 7-day period, referred to in the Teamsters' letters of June 7,
1963, for compliance by the dissidents with the union-security provisions of the
contract had not expired.5
The following then occurred:
Mr. MANN: And Howard Hughes is here, and so we are talking about the
evidence of tender.
Mr. FINLEY: That's correct. We are prepared to give that at this time in
any way that the company requests.
Mr. MANN' In view of the number of employees that you have here and in
furtherance of our discussion, to wit, that you have in effect filed on behalf of
Joe Razum a test case,6 it would seem to me that the best and the most expedi-
tious way to handle it would be the filing of affidavits on behalf of these people
by you as promptly as possible, setting forth the facts involving both a tender
and what they are prepared to do. [Emphasis supplied.]
General Counsel's position is that the $15 portion of the initiation fee was lawful.
The 7-day period began from date of receipt of the Teamsters notices As the letters
were dated June 7, a Friday, the parties appear to have assumed that they were not
received before the following Monday, June 10
6 Reference here is to an unfair labor practice charge filed against Teamsters by Joseph
Razum, which was intended as a test case to obtain a decision by the Board as to whether
the Teamsters initiation fee was lawful.
'640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now it is my understanding, Joe, and please correct me if I am wrong-it is
my understanding that all of these people are in agreement that they should and
are willing to pay dues commencing with the date of ratification of the labor-
management agreement presently in existence, and that they are willing to pay
initiation fee, and that they will comply as promptly as the NLRB decides this
test case in regard to any retroactive initiation fee and or dues, depending on
what the NLRB chooses to call it.
Am I correct in that?
Mr. FINLEY: You are correct. And I say further that these men are pre-
pared to meet all lawful obligations in every respect.
The same day, Attorney Finley prepared affidavits for each of the 20 dissidents
who were present at the meeting which affidavits, after having been executed, were
delivered to Dick Kline, the Company's assistant director of employee relations.
Each of these affidavits purported to set forth the manner in which the affiant tendered
or attempted to tender his dues and initiation fee to Teamsters. The affidavits did
not contain any statement as to what the affiants were "prepared to do" and Hughes
testified that he considered the affidavits deficient because of this omission. How-
ever, the Company did not call the deficiency to the attention of Finley.
By a letter to the Company, dated June 21, 1963, from Moses Krislov, Teamsters'
attorney, the Union indicated its willingness to go along with the arrangements made
on June 17 for disposing of the controversy arising from the dissidents refusals to
pay the initiation fee claimed by the Union to be due from them. In this letter
Krislov reaffirmed the Union's request for the discharge of the dissidents. He then
advised that in the interest of affording the Board an opportunity to pass upon an
issue raised in the Razum test case and in consideration of Mann's request that the
Union suspend its demand for the discharge of the dissidents, pending a decision in
the test case, the Teamsters were willing to work out the following program:
(1) Each of these employees must immediately pay current dues required of
them for the period required under the contract and must continue to pay
dues hereafter. The current dues referred to are the dues required only from
the time the employee was required to join the Union under the contract and
continuing up until the time that the dispute will be determined and thereafter
so long as required under the contract. These dues must be paid currently
and monthly at all times.
(2) Each of these employees agree, in writing, to pay whatever initiation fee
is found in the "Razum" case to be required in order to comply with Section 2
of the contract.
Krislov then stated that the Union was willing to waive the request for discharge
of any employee who signed such a commitment and paid his dues. The letter
concludes as follows:
In short, Local 293, by way of settlement and not as an admission, will, in
order to afford these people an opportunity to resolve the dispute involved with-
out jeopardizing their employment in interim, is willing to permit these people
to pay their monthly dues as they become due, and to agree to the payment of
whatever initiation fee is found to be legal by the Board. I have informed Mr.
Finley, attorney for Mr. Razum, of my position in this respect. After con-
sultation with you, I presume he will communicate his answer to you.
Spurred on by threats of a work stoppage stemming from the fact that the dissidents
still had not joined the Union, the Company took steps to implement the understand-
ings reached on June 17. In the afternoon of June 26, 1963, the Company drafted
an instrument in the form of an affidavit for the signatures of the dissidents. The
instrument reads as follows:
I hereby tender $8 to cover monthly dues for May and June, 1963 and will
promptly pay the same to the designated representative of Teamsters Local 293.
I shall continue to pay said monthly Union dues currently in accord with Section
2 of the present labor-management agreement and each month hereafter.
I also agree to promptly meet all lawful obligations as agreed by all parties
and accurately reported in the transcript of our meeting of June 17, 1963, includ-
ing, but not limited to the decision of the National Labor Relations Board in the
"Razum test case," No. 8-CB-728, as it may apply to me, in regard to any addi-
tional sums of money, namely initiations fees and/or dues which I may be
required to pay upon the final N.L.R.B. decision in said case.
The affidavit was read by Mann to Finley who approved its content. Finley told
Mann he would advise the group, if he were asked, to sign the affidavit, and in
another telephone conversation Finley gave Joseph Razum such advice.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 641
The next day the dissidents in groups of two and three were called into an office
where they were asked to pay $8 as union dues and to execute a copy of the affidavit.7
All the employees in the group, except Donald Rice, signed the affidavit and paid the
$8 dues.
Rice objected to executing the affidavit claiming that Finley had instructed him not
to sign anything without his approval. Rice was given an opportunity to telephone
his attorney. Because Finley was out of the city Rice spoke with Finley's law partner,
Mr. Schwartz, who contacted Finley by telephone and then informed Rice, and also
Hughes, that Finley had requested Rice to sign the affidavit. After approximately
1 hour and 40 minutes had elapsed, during which time Rice had engaged in various
telephone conversations and in discussions with Hughes and the other persons present,
Rice still had not signed the affidavit. Teamsters Chief Steward Abranovich, who was
present, several times requested that Rice be discharged. Finally, Hughes, becoming
exasperated by Rice's excessive delay, told him that if he did not begin to sign the
affidavit by the count of five, Hughes would assume that Rice was not going to sign and
Rice would be discharged. According to Hughes, whom I credit, he counted to five
slowly and as Rice had not started to sign by the end of the count, Rice was informed
that he was discharged. After being so advised Rice offered to sign the affidavit but
Hughes did not change his decision.8 Rice's termination slip reads, "Discharged
due to violation of Section #2-contrary to advice of his legal counsel."
Shortly after the above-described events, Attorney Finley requested withdrawal of
the charge which had been filed in the original Razum test case. The withdrawal
was approved on July 9, 1963, but the day preceding such approval, new charges were
filed, this time against the Company as well as the Union. The charge against the
Union expanded upon the violation alleged in the original Razum test case charge
by the addition of the following: "Local 293 . . . has continued to insist they make
other payments, and has insisted that employees, as a condition of employment, sign
statements and papers not required by law. On June 27, 1963, Local 293 caused the
employer to discharge employee Donald Rice for failure to sign such statements and
papers ...." The Union interpreted the withdrawal of the original Razum test case
charge and the substitution of the new charges to have been a repudiation of the
understandings reached in June. Because of this, the Union refunded to the dissidents
all dues theretofore paid by them and simultaneously informed them by letters, dated
August 9, 1963,9 that they had breached their agreements, reflected by the affidavits
of June 27, and demanded their compliance with the union-security clause of the con-
tract. Copies of the notices to the dissidents together with a letter that such notices
were being served in accordance with the provisions of the contract were forwarded
to the Company. This action constituted a renewal by the Union of its request for
the discharge of any dissidents who should fail to comply with the union-security
clause of the contract.
None of the dissidents joined the Union pursuant to the Teamsters demand and
none were discharged. Thereafter, on October 2, 1963, Teamsters wrote another
letter to each of the dissidents (except Rice and Hartup) which, after briefly referring
to their conflicting positions, states:
It is our request at the present time to you that:
(a) You tender and pay the sum of $15 plus dues of $4 per month from the
effective date of Section 2 (of the contract). The provisions of Section 2 require
your becoming a member of this Local starting thirty (30) days after the effective
date of the agreement, which is May 1, 1963. The monthly dues are $4 per
month. This means that effective in the month of October, 1963, you should pay
the initiation fee of $15, plus $4 for each of the months June, July, August,
September and October ($20.00) for a total of $35.
(b) The balance of the initiation fee claimed by this Local will be held in
abeyance until the unfair labor practice case is determined, and disposed of;
and the decision in that case will be determinitive of whether your position or
that of this Local is correct.
° Joseph Demojzes, who was absent on June 27, executed such affidavit on August 2, 1963.
8 Rice's version of the incident differs from Hughes' only insofar as Rice testified that
Hughes counted to five rapidly and before he finished the count Rice, who had his pen
poised over the affidavit, said he was ready to sign but Hughes merely told him he was
fired. Rice impressed me as being an unreliable witness. Accordingly, I do not credit his
version of the incident.
° Donald Rice, who was discharged on June 27, and Earnest Hartup were not sent such
letters.
796-027-66-vol. 15 3-4 2
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provided that you make the payments set forth in paragraph (a) above, and,
provided that upon completion of the test case you will pay the balance of the
initiation fee, if any , found to be lawfully demanded under such ruling, no
demand for your discharge will be made.
However, you are hereby informed that unless you complete making the pay-
ments set forth in paragraph (a) above within 7 days after receipt hereof you
will be subject to discharge under the provisions of Section 2 of the contract.
Attorney Finley advised the dissidents through Razum to pay the $35 requested in
the Union's letter of October 2 and he wrote to the Teamsters informing them that
he had so advised his clients but that, because he deems the Union's demand to be
unlawful , the payments were being made under protest and that he is filing an unfair
labor practice charge in consequence thereof.
On October 10, 1963, all members of the group, except Anthony Felice, paid $35
to the Teamsters. Felice offered to pay $8, instead of the $35 demanded by the
Union. The $8 offered by Felice was intended as payment of dues for the months of
September and October 1963. He claimed that having previously paid dues for
prior months, which had been refunded with the Union's letter of August 9, he was
under no obligation to pay dues for such months a second time. Felice also refused
to pay $15 as an initiation fee because he'previously had made a tender of that amount
which had been refused. Felice was offered the balance of the day to think the
matter over. He rejected the offer, stating that his mind was made up. Felice fur-
nished the Company with a signed statement reading as follows: "I, Anthony J.
Felice, on this tenth day of October, 1963, agree to tender dues to Teamsters Local
293, in the amount of eight dollars ($8) for the months of September and October,
1963. I feel that I have already tendered dues for the previous months and these
dues have been refused by the Teamster Union." The next day, October 11, the
Union requested Felice's discharge which was complied with. His discharge slip
reads: "Discharged due to violation of Section #2 of current Labor Management
agreement-Contrary to advice of his legal counsel." Felice testified that at the
time of his discharge he was employed at another plant and that it really did not
matter to him if he was fired.
B. Conclusions
1. As to the initiation fee
The resolution , adopted less than 3 weeks after certification of the Teamsters as
representative of employees of the Company and 41/2 months before the contract
was executed, established a basic initiation fee of $15 and provided for a cumulative
increase thereof by $4 per month (an amount identical to the monthly union dues)
for employees in the bargaining unit who did not join the Union in December 1962.
General Counsel contends that the sliding scale feature of the fee is discriminatory. 10
The initiation fee as established by the resolution was applicable only to persons
then employed in the bargaining unit and did not purport to apply to persons who
were hired after December 31, 1962,11 or to persons who, as of December 31, 1962,
10 The amended complaint alleges in paragraph numbered 30 a violation of Section
8(b) (5) not only because of the imposition of a discriminatory initiation fee but also
because the Union "is attempting to collect dues retroactively for periods of time antedat-
ing the effective date of the collective bargaining agreement " The latter allegation,
even if proved , would not constitute a violation of Section 8(b) (5). See Namm's, Inc.,
102 NLRB 466 . However, while I find below that the resolution established a discrimina-
tory initiation fee, I do not find thereby that Teamsters were attempting to collect
back dues.
11 Presumably no new employees have been hired within the unit since December 1962
because no evidence was offered as to what , if any, initiation fee was demanded from
them. Donald Rice and Anthony Felice testified, without contradiction, that on May 31,
1963 , in the presence of Richard Kowalski who was night steward and also a member of
Teamsters executive committee, Joseph Tekaucic, a departmental committeeman for the
Union, in response to a question from Felice stated that the fee for newly hired employees
would be $15. However, no evidence was offered to establish that Tekaucic's statement
had any foundation in fact, or was based upon information to which Tekaucic or Kowalski
was privy or was anything other than gratuitous speculation on the part of Tekaucic.
Accordingly, I find no probative value in this testimony of Rice and Felice regarding
the initiation fee for newly hired employees . Similarly , because there appears to be no
basis, other than personal opinion for such advice, I find no probative value in the testi-
mony of John Felice, Jr , that the Union's attorney, Moses Krislov, had advised him that
the initiation fee for new employees would be $15 plus $4 per month from December 1962.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 643
were employed by the Company in positions not within the bargaining unit and
thereafter were transferred to jobs within the unit. However, three employees, Frank
Sicurezza, Leonard Schultz, and Steve Sogan, Jr., who had been salaried foremen in
December 1962, and who thereafter were transferred to jobs within the unit between
May 1 and June 17, 1963, were required to pay a fee of $15 to join the Union.
According to the testimony of the Union's vice president, John Felice, Jr., because
the resolution did not by its terms cover the case of these three employees he obtained
and followed the advice of the Teamsters' attorney, Moses Krislov, to charge each of
them a fee of $15. Krislov reasoned that the fee should not be remitted for the
salaried foremen because the basis for waiving the fee for employees in the unit as of
December 1962 was the Union's desire to fulfill a preelection promise made to them 12
and as the foremen had not been in the unit when the promise was made they were
not entitled to the benefit of the promise. On the other hand, the foremen did not fall
within the category of newly hired employees. Accordingly, Krislov recommended
that they should be treated as "somewhere in between" and should be charged an
initiation fee of $15.
Teamsters position regarding the fee is that it is not discriminatory because it was
uniformly applicable to all employees and, unlike the situation in Ferro Stamping
and Manufacturing Co., 93 NLRB 1459, there was no disparity in treatment between
"newer" and "older" employees. I agree that General Counsel has not proved that
the fee for persons hired after December 31, 1962, is different than the fee for persons
who then were employed in the bargaining unit but had not joined the Union as of
such date.13 Also, the provision of the resolution waiving the initiation fee for
employees in the unit who were on leave of absence in December 1962 and who
promptly join the Union upon their return to work 14 has not been proved to have
been based upon discriminatory considerations.15 Similarly, the General Counsel has
not proved that any discriminatory distinction was drawn by the difference between
the fee charged the three salaried foremen who were returned to the unit after
April 30, 1963, and the fee demanded from employees who were in the unit in
December 1962 but who did not join the Teamsters.
Although none of the three situations discussed above establishes that the resolu-
tion was discriminatory by its terms or was discriminatorily applied, a significant dis-
parity is revealed by the difference in treatment between two other classes of employ-
ees which I find was discriminatory. The resolution, while applicable to all employees
in the unit, nevertheless, differentiates between those persons in the unit as of Decem-
ber 31, 1962, who chose to support Teamsters by joining the Union during said
month and those persons then in the unit who refused to join the Teamsters and to
give the Union their financial support. The latter group not only was denied the
benefit of a waiver of the basic $15 initiation fee but was penalized because the
initiation fee for them increased each month by an amount exactly equal to the
monthly dues charged the persons in the first group.
Section 8(b) (5) of the Act does not bar a labor organization from charging differ-
ent classifications of employees within a bargaining unit varying initiation fees.
What the section does prohibit is charging a fee in an amount which is "excessive or
12Employees on leave of absence as of December 31, 1962, had been eligible to vote in
the election and were included among those to whom the promise had been directed.
For this reason their situation differed from that of the salaried foremen.
130n the other hand, Teamsters did not prove the converse ; namely, that the fee
for these two categories was the same.
14 The resolution provides that the initiation fee will be waived for employees who were
on layoff, industrial leave of absence, sick leave, or in service as of December 31, 1962,
provided such employees join the Union within 30 days after their recall or return to
work and pay their dues for such month, otherwise there is a $15 fee for such employees
which automatically increases at the rate of $4 per month beginning 30 days after their
recall or return to work.
15 Neither Section 8(b) (5) nor the proviso to Section 8(a) (3) prohibits labor organiza-
tions from establishing on a nondiscriminatory basis reasonable classifications and setting
different initiation fees as a requirement for joining such organization for the employees
in the separ'te classifications. Kaiser Steel Corporation, 125 NLRB 1039, does not
hold to the-contrary. In that case, supervisors who were returned to the collective-
bargaining unit were required to pay the equivalent of monthly union dues to the unit's
bargaining agent while they occupied supervisory positions. The Board found that the
contract provision containing such requirement was unlawful because, in effect, it im-
posed upon the supervisors an obligation to pay union dues for periods of time when
they were under no lawful compulsion to do so.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory under all the circumstances ." The Board has consciously refrained
from circumscribing by definition the meaning of the term "discrimination" as used
in this section of the Act . See Local 153 , International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-CIO (Bendix Avia-
tion Corporation), 99 NLRB 1419 , 1421. Sufficient for the purposes of this case is
the Board's pronouncement in Ferro Stamping that "a distinction in initiation fees
which is based on a prior exercise by an employee of his statutory right to refrain
from joining a labor organization is plainly `discriminatory under all the circum-
stances' within the meaning of Section 8(b)(5)." 16 So much of the resolution as
provides for the remission of the basic $ 15 initiation fee for those who joined the
Union prior to December 31, 1962, is unobjectionable within the meaning of the
Board's pronouncement because "a pre-election promise permitting all present
employees, whether they vote for the Union or not, to join without payment of an
initiation fee up to and within a reasonable time immediately after the election" is
not improper 17 because it is a form of permissible "promotional persuasion." 18
Also unobjectionable as a reasonable nondiscriminatory extension of such waiver is
the remission of initiation fees for employees on leave of absence who join the Union
within 30 days after their reutrn to work. On the other hand, the graduated feature
of the resolution does create a discriminatory distinction within the compass of the
Board's pronouncement . As the fee for employees who refrained from joining the
Teamsters in December 1962, when they were under no lawful compulsion to do so,
increases by precisely the same amount as the monthly dues, the ultimate effect of
the resolution is to equalize the amount of the initiation fees paid by such employees
with the contributions of dues to the Union by those employees in the unit who joined
the Teamsters during December 1962. The Union thereby sought to accomplish
indirectly through the device of a graduated initiation fee what it could not do directly,
that is, compel employees who chose not to join the Union and not to contribute to its
support, during the period of time when they were under no obligation to do so, to
pay the equivalent of back dues . Therefore , the distinction in initiation fees between
employees who joined the Union in December 1962 and employees who refused to
join during that month was based upon a prior exercise by the latter of their statutory
right to refrain from joining the Union and accordingly was discriminatory within the
meaning of Section 8(b)(5). If there is a nondiscriminatory explanation for the
requirement that employees within the unit who did not join the Union in December
1962 pay as an increment to their initiation fees an amount precisely equal to the dues
they would have paid had they joined the Union in that month , the explanation is
within the knowledge of the Teamsters . Failure of the Teamsters to come forward
with a nondiscriminatory explanation suggests only that no such explanation exists.
The Charging Parties contend that the entire initiation fee was discriminatory,
while the General Counsel's position is that the basic $15 portion of the fee was non-
discriminatory and only the graduated feature of the fee is objectionable . I agree
with the General Counsel. Distilling the essence from the Charging Parties' involved
argument , their contention is that the initiation fee was not severable and the fee
is either all bad or all good . It is true that by the terms of the resolution any
employee who joined the Union after December 31, 1962, was required to pay a single
lump sum as his initiation fee. To that extent the Charging Parties' argument is cor-
rect. However, in advancing this argument, they ignore the method by which the
sum of money which ultimately is required to be paid by an employee choosing to
join the Union is computed . The fee in such case is arrived at by adding $ 15 to the
graduated increment. Thus, the situation is not unlike that which obtains in suits on
usurious promissory notes. In many jurisdictions the payee is barred by statute from
collecting interest on such note . In such cases , although the payee on the due date of
the note may have demanded from the maker a single sum which included both the
principal and the usurious interest thereon, the courts separate the two components of
the entire debt and award to the payee judgment only for the lawful component;
namely, judgment in an amount which will return to the payee the principal sum
which he had loaned the maker of the note. Similarly, here I find no reason why
the discriminatory and nondiscriminatory portions of the resolution cannot be
disentangled.
On May 1, 1963, when the Teamsters entered into a collective -bargaining agreement
with the Company containing a union -security provision requiring the employees
16 Ferro Stamping and Manufacturing Co , 93 NLRB 1459, 1460.
17 N L R B. v. Gorbea, Pei ez & Morell, S. en C., 328 F. 2d 679 (C.A. 1), 55 LRRMI
2586, 2588.
13 AT L R B. v Irving Taitel, et al, d/b/a I. Taitel and Son, 261 F. 2d 1, 4 (C A. 7),
cert. denied 359 U S. 944.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 645
,covered by the contract to join the Union as a condition of employment , beginning as
-of that date , the Union violated Section 8(b)(5) of the Act because , pursuant to its
resolution , a condition precedent to employees who were then in the bargaining
unit becoming members of the Teamsters was a requirement that they pay a fee in
an amount which I find was discriminatory under all the circumstances.
I find no merit to Teamsters ' argument that because the resolution was adopted on
December 16, 1962, and the first charge in this case was filed on July 8, 1963, more
than 6 months thereafter , Section 10 ( b) of the Act bars any unfair labor practice
finding based upon the resolution . The violation in this case dates not from Decem-
ber 16, 1962 , but from May 1, 1963 . Although there would not have been a violation
of Section 8(b) (5) in this case had the Union not adopted the discriminatory resolu-
tion, nevertheless , the date from which the 6-month period contemplated by Section
10(b) begins to run is not the date when ,the first action which led to an unfair labor
practice took place, but the date on which all the necessary events to establish a viola-
tion of the Act occurred and with respect to which a charge could have been filed.
The discriminatory resolution alone was not unlawful. It became unlawful only when
employees became subject to a requirement that they join the Union . This date was
May 1, 1963, the date of execution of the contract , and therefore the date from which
the period of limitations should be counted.
I further find that by imposing a discriminatory initiation fee upon employees who
were required to join the Union under the terms of the contract , the Teamsters
restrained and coerced employees in the exercise of their statutory rights within the
meaning of Section 8 ( b) (1) (A) of the Act. This results from the fact that employees
who were in the unit as of December 1962 and had not joined the Union during that
month were required by the terms of the resolution to pay the discriminatory initia-
tion fee in order to secure membership in the Union , or suffer the threat of discharge
under the terms of the collective -bargaining agreement.19
Evidence adduced at the hearing shows that after May 1, 1963, only one employee,
Stephen T . Phillips, paid the discriminatory fee. During the month of May 1963 he
paid to the Union an initiation fee in the amount of $35 , as a condition precedent to
becoming a member. I shall recommend that Teamsters refund to Phillips the dis-
criminatory portion of such fee , to wit $20, together with interest thereon from May 1,
1963.
2. As to the discharge of Donald Rice
On May 31 , 1963, the last day of the grace period for joining the Union pursuant to
the union -security clause of the contract , most of the dissidents offered to join the
Teamsters by tendering the sum of $ 19, representing the current month 's dues of $4
and an initiation fee of $15. These tenders were rejected as being insufficient because
under the resolution the Union was demanding an initiation fee of $35 20
On June 7, 1963 , the Union wrote to each of the dissidents advising them that
they had not complied with the union -security provisions of the contract , that they
had 7 days within which to bring themselves into compliance , and that their failure
to do so will subject them to discharge . At the same time the Union forwarded
,copies of such notices to the Company together with a letter advising the Com-
pany that the notices were being served pursuant to the union -security provision of
the contract . These communications constituted a demand upon the Company to
discharge any dissident who within 7 days after the receipt of the notice did not
16 Local 153 , International Union, United Automobile, Aircraft, etc. (Bendix Aviation
Corporation ), 99 NLRB 1419, 1421
21 Considerable testimony was adduced at the hearing as to the adequacy of the tenders
made by the dissidents and the authority of the person to whom the various tenders were
made to accept tenders on behalf of the Union However , the Union would not have
accepted an initiation fee from any of the dissidents in an amount less than $35, there-
fore , the act of tendering $ 19, which included only $15 as the initiation fee, was an un-
necessary, futile gesture on the part of the dissidents Furthermore , it appears that the
Union treated all dissidents alike ( that is, those whom the Union considered to have made
a technically adequate tender of $ 15 and those whom it considered not to have made such
tender ) because on June 7 , 1963, the Union sent an identical letter to each of the dis-
sidents notifying him of his failure to comply with the union -security provisions of the
collective -bargaining agreement Accordingly , I find that the Teamsters denied all dis-
sidents membership in the Union only because they were unwilling to pay an initiation
fee of $35 and not for any reason relating to the inadequacy of their tender of dues and
initiation fees The Eclipse Lumber Company , Inc., 95 NLRB 464, 467 , enfd . 199 F. 2d
684 (C.A. 9).
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become "a member in good standing of the Union ... to the extent of paying the
Initiation Fee and periodic Membership Dues required of all Union members ...."
As the initiation fee so demanded by the Union was unlawfully discriminatory, I
find that the Union by its letters of June 7, 1963, attempted to cause the Company
to discharge the dissidents for failing to pay such discriminatory initiation fee and
thereby violated Section 8(b)(2) and 8(b)(1)(A) of the Act.
Except for Rice, none of the dissidents were discharged by the Company. On
June 17, 1963, the Company and dissidents acting through their attorney, John E.
Finley, worked out a formula for settling the controversy. The understanding
reached was that the employees would pay their monthly dues only and that pay-
ment of the initiation fee would be deferred until the National Labor Relations
Board should decide the Razum test case after which the dissidents would promptly
pay such initiation fee as the Board should find to be lawful. Although union rep-
resentatives participated in this meeting as observers only, the Teamsters later sig-
nified its intention of accepting the settlement procedure that was worked out on
June 17. Accordingly, on June 21, counsel for the Teamsters wrote to the Com-
pany advising that it was willing to waive its request for the discharge of any dissi-
dents who pay their dues currently and who "agree, in writing, to pay whatever
initiation fee is found in the `Razum' case to be required in order to comply with
Section 2 of the contract."
On June 27, 1963, all the dissidents, except Rice, executed an affidavit agreeing
to pay such additional amounts as initiation fees or dues as the National Labor
Relations Board shall find to be lawful. Rice, however, refused to execute such an
affidavit and at the request of the Union was discharged 21
The Union's request for and the Company's discharge of Rice is alleged to violate
Section 8(b)(2) and (1)(A) and Section 8(a)(3) and (1) of the Act The Gen-
eral Counsel's theory is that the proviso to Section 8(a)(3) of the Act permits the
discharge of an employee for failure to comply with the union-security provision
of a contract only if the reason for such discharge was "the failure of the employee
to tender the periodic dues and the initiation fees uniformly required as a condition
of acquiring and retaining membership" in the labor organization and in this case
because Rice was discharged not for any failure on his part to tender a lawful ini-
tiation fee but for his failure to execute an instrument agreeing to pay such fee, the
Respondents violated the Act. According to General Counsel's argument, execut-
ing a writing is something other than a tender of money and therefore Rice's dis-
charge for failing to execute a writing was not sanctioned by the Act even though
the writing would bind him to do nothing more than he was required to do; namely,
to pay his current dues and lawful initiation fee.22 The General Counsel's argu-
ment is based on the premise that the proviso to Section 8(a)(3) of the Act should
be so strictly construed that any action which does not fall within the literal con-
fines of the language of the proviso is unlawful. In support of his position, General
Counsel cites N.L.F. B v. Pape Broadcasting Company (Radio Station WALA), et al.,
217 F. 2d 197 (C A. 5), and Argo Steel Construction Company, 122 NLRB 1077,
enfd as modified 289 F. 2d 491 (C.A. 6). Both cases are distinguishable from the
instant case and involved discharges of employees for dissimilar reasons. In the
Pape case a union was found to have violated the Act by causing one Thompson to
be discharged because of his reluctance to give up membership in another labor
organization. In the Argo case the Board held that a clause in a collective-bargaining
21The Company and the Union contend that Rice did not tender current dues on
June 27, 1963, and therefore lawfully could have been discharged for his failure to do
so. However, the discussion on the 27th which led to Rice's discharge centered around
his refusal to execute the affidavit relating to the initiation fee. It was Rice's failure to
sign the affidavit that precipitated his discharge Thus, whether or not Rice made a
formal tender of his monthly dues on June 27 is immaterial because that was not the
motivating reason for his discharge Furthermore, Rice indicated, at that meeting, that
he was willing to pay current dues and the testimony regarding the transactions on
June 27, does not show that any demand for dues, separate from the demand that he sign
the affidavit, was made.
21 The affidavit Rice was asked to sign required him to tender dues for the month of
May as well as for June 1963. Rice and the other dissidents, in accordance with the
understandings reached on June 17, were willing as their voluntary acts to pay dues for
May. Neither General Counsel nor the Charging Parties contends that Rice' s refusal to
sign the affidavit was in any way based upon the fact that he was required thereby to
tender dues for May or that such requirement in the circumstances was unlawful.
THE GABRIEL DIVISION OF THE MAREMONT CORP . 647
agreement which required new employees to make application for membership in
the contracting union immediately upon hire was unlawful because "the Act requires
no such signification of advance intent; it gives employees 30 days of employment
before they can be compelled to make a choice."
The cases upon which General Counsel relies stand for the proposition that Sec-
tion 8(a)(3) of the Act may not be interpreted to enlarge upon the areas of permis-
sible union security. Thus, the holding in the Pape case is that Section 8(a)(3),
while permitting a union-security clause which requires membership in a labor
organization as a condition of employment, does not sanction a clause which also
requires withdrawal of membership from any other labor organization. Similarly,
the Argo case holds that the 30-day grace period for joining a union may not be
circumvented. Neither case stands for the proposition advanced by the General
Counsel that the only permissible union-security clause is one that conforms to the
precise language of Section 8(a) (3).
While Section 8(a)(3) may not be construed to enlarge the permissible area for
union security, it is not so narrowly interpreted as to prohibit union-security provi-
sions which are less restrictive upon employees' personal liberties and organizational
rights than the union-shop arrangement described by the language of its proviso.
Thus, in N.L.R.B. v. General Motors Corporation, 373 U.S. 734, the Supreme Court
rejected the argument that an "agency shop" was unlawful because the proviso to
Section 8(a) (3) solely allows employment to be conditioned upon "membership" in
a union. The Court in that case found lawful an "agency shop" proposal which
"conditioned employment upon the practical equivalent of union `membership' as
Congress used that term in the proviso to Section 8(a)(3)." The Court concluded
that "[t]o the extent that it (an agency shop) has any significance at all it serves,
rather than violates, the desire of Congress to reduce the evils of compulsory union-
ism while allowing financial support for the bargaining agent."
Referring to the proviso with which we are concerned here, the Supreme Court
in The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H.
Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 41, stated: "[The] legislative
history clearly indicates that Congress intended to prevent utilization of union-
security agreements for any purpose other than to compel payment of union dues
and fees. Thus, Congress recognized the validity of union's concern about `free rid-
ers', i.e., employees who receive the benefits of union representation but are unwill-
ing to contribute their fair share of financial support to such union, and gave the
unions the power to contract to meet the problem while withholding from unions the
power to cause the discharge of employees for any other reason."
Although the proviso imposes limitations upon the union obligations which a
labor organization may enforce against employees, it was not intended to describe
how such obligations should be discharged or to restrict labor organizations in the
imposition of reasonable requirements for the discharge of such obligations. Section
8(a)(3) sanctions union-security agreements which "compel payment of union ...
fees" by employees covered thereby. When or how such payments shall be made is
left to the reasonable determination of the contracting parties. It was not the legis-
lative purpose to cast all union-security clauses into uniformly rigid molds. In this
case, the Union lawfully could have insisted upon immediate payment of the initia-
tion fee; instead its demand upon Rice was that he pay the fee at some future date.
This certainly was permissible. The further condition imposed was that he signify
in writing his agreement to make such payment. Such requirement was reasonable
in the circumstances where a controversy existed as to the amount of the lawful
initiation fee and the Union was content to await a Board determination of the mat-
ter. To require Rice to execute such writing was not to impose upon him an obli-
gation more onerous than paying the fee at once. Neither General Counsel nor
Charging Parties argue that by signing the affidavit Rice would have been assuming
an obligation which otherwise could not have been imposed upon him or that his
personal liberties or organizational rights thereby would have been impaired. To
argue, as does General Counsel and the Charging Parties, that the phrase "to
tender .. . the initiation fees" means only to offer to pay such fees in cash and does
not sanction any other form of compulsory payment is to lose sight of the legislative
intent behind a barrier constructed by defining words without a view of the context
in which the words are used or the purposes Congress intended to be served by the
use of the words. Accordingly, contrary to the General Counsel and Charging Par-
ties, I do not find that the discharge of Rice was a violation of the Act 23
23 Cf. General Motors Corporation, Packard Electric Division, 134 NLRB 1107, 1116-1117.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. As to the discharge of Anthony Felice
Interpreting the withdrawal of the charge in the original Razum test case and the
filing of new charges to have been a repudiation of the arrangements worked out in
June for the resolution of its controversy with the dissidents concerning the lawful
initiation fee applicable to them, the Union on August 9, 1963, wrote to the dissi-
dents informing them that the Union considered that they had breached their agree-
ment, that the dues previously paid by them were being refunded and that they were
expected to comply with the union-security provision of the contract. At the same
time the Union requested the Company to discharge those dissidents who did not
comply 24 Such request for discharge, in circumstances where the Union was
demanding payment of a discriminatory initiation fee, constituted a continuation and
renewal of its violations of Section 8(b) (2) and (1) (A) of the Act.
The Teamsters' request did not result in the discharge of any employees and the
Union later modified its position. On October 2, 1963, Teamsters wrote to the dissi-
dents requesting them to pay an initiation fee of $15 plus dues of $4 per month start-
ing 30 days after the effective date of the contract. In this letter, the Teamsters
reserved the right to demand the balance of the initiation fee which it claimed to be
due should the Union obtain a favorable decision in the pending unfair labor prac-
tice proceedings. Thus, as of October 2, 1963, the Teamsters changed its position
and no longer was imposing an unlawful condition upon the dissidents acquiring
membership in the Union. However, such change of position neither absolves the
Union from responsibility for nor remedies the antecedent violations of Section
8(b)(5), 8(b)(2), and 8(b)(1)(A) of the Act. Because the Union continues to
maintain the position that it is entitled to the larger initiation fee, which I have found
hereinabove to be discriminatory, and in order to minimize the possibility of like or
related violations of the Act, I shall recommend that an appropriate remedial order
be issued herein.
All the dissidents, except Anthony Felice, complied with the Teamsters request set
forth in its letter of October 2, 1963. Felice maintained that having previously
tendered his initiation fees, which tender was refused, and having previously paid
dues for the months preceding September 1963, which dues had been refunded to him,
he was under no obligation to tender or pay the same sums again. Accordingly, on
October 10, 1963, Felice offered to pay to the Union the sum of $8 as dues for the
months of September and October 1963 but refused to make any payments with
respect to the $15 initiation fee or dues for the months of June through August,
inclusive. The following day, on October 11, at the request of the Union, the Com-
pany discharged Felice.
General Counsel contends that Teamsters' demand for and the Company's dis-
charge of Felice was unlawful because, having previously tendered the $15 initiation
fee and dues for the months of June through August, he was not required to make a
second tender of such amounts. General Counsel's position is based upon a strict
and literal construction of clause (B) to Section 8(a) (3) of the Act which prohibits
discrimination against an employee for nonmembership in a labor organization "for
reasons other than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining member-
ship." [Emphasis supplied ] General Counsel cites no precedent or other authority
to support his argument and, as discussed above, his narrow, restrictive construction
of Section 8(a)(3) is at variance with the legislative purpose sought to be achieved
by the proviso. The Taft-Hartley Act amendments of the original Section 8(3) of
the Wagner Act while designed to remedy "the most serious abuses of compulsory
unionism . . . by abolishing the closed shop," 25 nevertheless, preserved for labor
organizations a means for obtaining financial contributions by employees. Congress,
recognizing the validity of unions' concern about "free riders," gave unions the power
to enter into contracts which would "compel payment of union dues and fees." 26
To construe the word "tender" so narrowly as to deny unions a reasonable oppor-
24 Any doubt as to whether the Union 's August 9 , 1963, notification to the Company
was a request for the discharge of the dissidents is effectively dispelled by its letter dated
October 2 , 1963, in which the Union specifically advised the employees that their "dis-
charge was requested by this Union for failure to comply with the aforesaid Section 2
[of the contract]."
25 N.L.R.B. v. General Motors Corporation , 373 U S 734, 740.
28 The Radio Officers' Union of the Commercial Telegraphers Union, AFL ( A. H. Bull
Steamship Company ) v. N.L.R.B., 347 U S. 17, 41.
THE GABRIEL DIVISION OF THE MAREMONT CORP. 649
tunity to secure payment of lawful dues and fees would be antithetical to the legis-
lative objectives reflected by the proviso to Section 8(a)(3).27 It is not necessary
here to consider a case where either a labor organization or an employee is seeking to
take advantage of a union-security clause in order to harass, annoy, or embarrass the
other. It is sufficient for the purposes of this case to note that the Teamsters' refusal
to accept payment of the initiation fee tendered by Felice in May 1963 and its refund
to Felice in August 1963 of payments of dues previously made by him was not done
to harass, annoy, or embarrass him and, furthermore, in all the circumstances heie,
was not intended to be and did not constitute a waiver by the Union of its right to
demand and receive from Felice such amounts as payment of dues and initiation fee
as was lawful. Accordingly, I find that at all times material after October 2, 1963,
the Union was entitled to demand from Felice, as a condition of acquiring member-
ship, payment by him of an initiation fee in the amount of $15 and dues of $4 per
month beginning June 1963, and that neither the Teamsters nor the Company violated
the Act by reason of Felice's discharge because of his refusal to make such payments.
Supporting this conclusion is National Lead Company, Titanium Division, 106 NLRB
545. In that case the charging parties on several occasions indicated that they would
pay their dues in cash, but the union rejected those offers because they would not also
pay fines which were imposed for nonattendance at union meetings. Subsequently,
the union demanded the payment within 10 days of all dues owing under the contracts
and threatened to seek the discharge of the charging parties in case of default. The
union indicated clearly that this new demand was for payment of periodic dues
only excluding any fines that had been imposed upon the charging parties. The Board
held "the discharges were brought about only after the demand for dues was separated
from the demand for fines and after the employees were given a fresh and ample
opportunity to clear themselves with the Union by tendering their dues alone. We
find no violation of the Act in this conduct of the Respondents." 28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Teamsters set forth in section III, above, occurring in connec-
tion with the operations of the 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 Teamsters has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By requiring employees covered by an agreement authorized under Section
8(a)(3) of the Act to pay discriminatory initiation fees as a condition precedent to
becoming members of the Respondent Union, the Respondent Union has engaged in
unfair labor practices within the meaning of Section 8(b)(5) of the Act.
2. By attempting to cause The Gabriel Division of the Maremont Corporation, in
violation of Section 8(a)(3) of the Act, to discriminate against employees for non-
membership in the Union where membership in the Union was denied or terminated
for reasons other than their failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring membership, the Respondent Union
has engaged in unfair labor practices within the meaning of Section 8(b) (2) of
the Act.
27 This is not to say that the word "tender" as used in Section 8 (a) (3) is synonomous
with the word "pay." For instance, in a case where an employee is ready and willing to
pay his union dues and fees but the union refuses to accept them, if the word "pay"
had been used in the section it would be possible to construe the section as sanctioning
the discharge of the employee In such circumstances, while because of the use of the word
"tender" it Is clear that such discharge would be unlawful
?e Accord, N.L.R B. V. Local 3, Bloomingdale, District 65, Retail, Wholesale & Depart-
ment Store Union, CIO (Bloom. ngdale's), 216 F. 2d 285 (C.A 2). Cf. Kaiser Aluminum
& Chemical Corporation, 98 NLRB 753.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent Union has engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent Union has not engaged in any unfair labor practices by reason
of conduct alleged in the complaint to have been in violation of the Act except insofar
as such conduct has been found hereinabove to have violated Section 8(b)(1) (A),
(2), or (5) of the Act.
6. The Respondent Company has not violated Section 8(a)(1) and (3) of the
Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that the Respondent, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Union
Local No. 293, its officers, agents, and representatives, shall:
1. Cease and desist from
(a) Requiring the employees of The Gabriel Division of the Maremont Corpora-
tion, its successors or assigns, who are covered by an agreement authorized under
Section 8(a)(3) of the Act, to pay discriminatory fees as a condition precedent to
becoming members of the Union.
(b) Causing or attempting to cause The Gabriel Division of the Maremont Corpo-
ration, its officers, agents, successors, or assigns, to discharge, because of nonmember-
ship in the Union, employees who have tendered or paid the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining membership
in the Union or to whom membership is not available on the same terms or conditions
generally applicable to other members, or causing or attempting to cause the said
Company in any like or related manner to discriminate against its employees in vio-
lation of Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees of The
Gabriel Division of the Maremont Corporation, its successors or assigns, in the exer-
cise of the rights guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8(a)(3) of the Act
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Reimburse Stephen T. Phillips for the discriminatory overcharge of initiation
fee previously paid by him, by refunding to him the sum of $20 together with interest
on said sum at the rate of 6 percent per annum from May 1, 1963.
(b) Post at its business offices and meeting halls in Cleveland, Ohio, copies of the
attached notice marked "Appendix." 29 Copies of said notice, to be furnished by the
Regional Director for Region 8, shall, after being duly signed by an official representa-
tive of the Respondent Union, be posted by it immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily posted. Reason-
able steps shall be taken by the Union to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Mail or deliver to the Regional Director for Region 8 signed copies of the
attached notice marked "Appendix" for posting by The Gabriel Division of the
Maremont Corporation, if willing, at its plant in Cleveland, Ohio, in places where
notices to the Company's employees are customarily posted.
(d) Notify the Regional Director for Region 8, in writing, within 20 days after
the date of the receipt of this Decision, what steps Respondent Union has taken to
comply herewith.30
SO In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event the Board's Order is enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
30 In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent Union has taken to comply herewith.
CHECKER CAB COMPANY AND ITS MEMBERS 651
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF THE GABRIEL DIVISION
OF THE MAREMONT CORPORATION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT require the employees of The Gabriel Division of the Maremont
Corporation , its successors or assigns , who are covered by an agreement author-
ized by Section 8(a)(3) of the Act, to pay discriminatory fees as a condition
precedent to becoming members of our union.
WE WILL NOT cause or attempt to cause The Gabriel Division of The Mare-
mont Corporation , its officers , agents, successors , or assigns , to discharge,
because of nonmembership in our organization , employees who have tendered
or paid the periodic dues and initiation fees uniformly required as a condition of
acquiring or retaining membership or to whom membership is not available on
the same terms and conditions generally applicable to other members , or in any
like or related manner cause or attempt to cause the said Company to discrimi-
nate against its employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
the said Company , its successors or assigns , in the exercise of the rights guaran-
teed in Section 7 of the Act , except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment , as authorized by Section 8(a) (3) of the Act.
WE WILL reimburse Stephen T. Phillips for the discriminatory overcharge of
initiation fee previously paid by him by refunding to him the sum of $20 together
with interest thereon at the rate of 6 percent per annum from May 1, 1963.
INTERNATIONAL BROTHEROOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, TEAMSTERS
UNION LOCAL No. 293,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room 720,
Bulkley Building, 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main 1-4465,
if they have any question concerning this notice or compliance with its provisions.
Checker Cab Company and Its Members and Local 10, Trans-
portation Services and Allied Workers , Seafarers International
Union of North America, AFL-CIO. Case No. 7-CA-5178.
June 28,1965
DECISION AND ORDER
Upon a charge duly filed on April 21, 1965, by Local 10, Transpor-
tation Services and Allied Workers, Seafarers International Union of
North America, AFL-CIO, herein called the Union, against Checker
'Cab Company and its Members, herein called Respondent Company,
Respondent Members, or jointly Respondents, the General Counsel
for the National Labor Relations Board, by the Acting Regional
Director for Region 7, issued a complaint alleging that Respondents
had engaged in and were engaging in unfair labor practices affecting
153 NLRB No. 49.