Namm's Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1953

102 N.L.R.B. 466 (N.L.R.B. 1953)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certification of Representatives It is hereby certified that Local 692, Retail Clerks' International Association, AFL, has been designated and selected by a majority of all full-time and regular part-time selling and nonselling employees employed by the Company at its Hagerstown, Maryland, store, ex- cluding warehouse employees, truck drivers, guards, professionals, and supervisors as defined in the Act, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, that organization is the exclusive representative of all such employees for the purposes of collective bargaining with regard to rates of pay, wages, hours of employment, and other conditions of employment. NAMM'S INC. and REGINA FREIBERG and DEPARTMENT STORE EM- PLOYEES UNION, LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 AND 1250-B, PARTY TO THE CONTRACT NAMM'S INC. and SARA GOLDES DEPARTMENT STORE EMPLOYEES UNION LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 and 1250-B and REGINA FREIBERG DEPARTMENT STORE EMPLOYEES UNION LOCAL 1250, INDEPENDENT, NOW KNOWN AS UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 AND 1250-B, and SARA GOLDES. Cases Nos. 2-CA-1130, 2-CA-1379, 2-CB-372, and 2-CB-427. January 22, 1953 Decision and Order On February 12, 1952, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, as amended, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent Company filed a brief in support of the Intermediate Report. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- 102 NLRB No. 45. NAMM' S INC. 467 tions of the Trial Examiner only insofar as they are consistent with our decision. 1. The Trial Examiner found that the Respondent Union did not violate Section 8 (b) (1) (A) of the Act by requiring employees cov- ered by a valid union-shop agreement to pay union dues that accrued before the effective date of this agreement, as a condition of securing membership in good standing. A majority of the Board does not agree. As fully discussed in the Intermediate Report, the Union, after prolonged negotiations following Board certification, entered into a union-shop contract with the Company which required membership in good standing as a condition of employment. To achieve member- ship in good standing, the Union required all employees, who had previously become members, to pay the dues they failed to pay during the intervening 10-month period when no contract was in existence.2 The Union also imposed a similar obligation upon those employees who were hired by the Company before the effective date of the union- shop agreement and who did not join the Union until this agreement went into effect. As a condition of obtaining membership in good standing, these employees were required to pay dues accruing from the date of their employment. We find, as the General Counsel contends, that the Union's require- ment of back dues to achieve membership in good standing, which the union-shop agreement made a condition of employment, necessarily conveyed the implied threat to employees that they risked discharge if they failed to comply,3 as was forcefully demonstrated in employee Goldes' discharge, considered below. But back dues are plainly more that periodic dues or initiation fees that could lawfully be imposed by a labor organization upon employees covered by a union-security agreement as a condition of obtaining membership in good standing.4 Accordingly, we find that the Respondent Union, by requiring em- ployees to pay back dues under the circumstances related above, necessarily restrained and coerced employees in the exercise of their I Member Murdock dissents from this finding. He believes that the Union 's efforts to collect back dues from its members and those who failed to join the Union when they were employed did not violate Section 8 (b) (1) (A) as the Union was simply exercising its legitimate organizational rights without threats of discharge or other discrimination in employment. The Board is unanimous , however, in sustaining the Trial Examiner 's dismissal of the allegations of the complaint that this conduct also violated Section 8 (b) (2) of the Act and that the Respondent Company was equally responsible with the Union within the meaning of Section 8 (a) (3) and (1) of the Act. During the period of these employees' delinquency , the Union 's constitution provided for automatic suspension of members who fell 2 months in arrears in the payment of dues. Cf. Local 153 , International Union, etc. (Richard Stacker et al.), 99 NLRB 1419. 4 See, for example , International Union, etc. (Wisconsin Axle Division, The Timken- Detrott Axle Company ), 92 NLRB 968, enfd . 194 F. 2d 698 ( C. A. 7) ; The Eclipse Lumber Company, Inc., 95 NLRB 464, enfd 199 F. 2d 684 (C. A. 9). 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed in Section 7 of the Act and thereby violated Section8 (b) (1) (A).5 2. We also do not agree with the Trial Examiner that the discharge of employee Goldes was not violative of the Act. In reaching his conclusion, the Trial Examiner found that the Respondents' union- security agreement, mentioned above, protected the discharge because Goldes failed to join the Union and make a timely tender of initiation fees and current dues. Our disagreement with the Trial Examiner stems, not from any disapproval of his credibility findings, but from our disapproval of his inferences drawn from the evidence as to the reason for the discharge. We are satisfied, as the General Counsel urges, that the evidence establishes that Goldes was discharged because of her failure to regain membership in good standing by paying the dues that accrued during the period when no union-shop agreement was in existence requiring her to maintain such membership. Goldes was a contingent employee subject to the union-shop pro- vision. She joined the Union in 1946 and was one of the large num- ber of employees who stopped paying their dues during the noncon- tractual period. Because she and other contingent employees failed to get into good standing with the Union within the 30-day statutory grace period after the union-shop contract went into effect, the Union, on December 7, 1949, sent the Company the names of these employees including Goldes', "who have failed to put themselves in good stand- ing" and requested their discharge if they did not "correct . . . the matter" by December 15. Goldes did not comply, with the result that on December 19 the Union notified the Company that Goldes made "no attempt to get into good standing" and requested . . . [her] dis- charge for failure "to put . . . [herself] in good standing." There- upon, the Company's personnel manager, Lucas, discharged Goldes. According to Goldes' uncontradicted testimony, which we credit, Lucas told her at the time of her discharge that the Union asked for her dismissal for nonpayment of back dues. At the Union's office, where Goldes unsuccessfully tried to straighten out her situation by paying what she owed, she was also informed by the Union's office clerk that her failure to pay her back dues was the reason for her discharge. The foregoing evidence clearly establishes that Goldes was dis- charged because she failed to regain membership in good standing in the Union by paying her back dues that accrued during the contractual hiatus, and not because she failed to join or make a timely tender 5 Cf. The Eclipse Lumber Company, supra. Under settled law , it is immaterial whether or not the employees , who resisted the Union's efforts to collect the back dues until the Union abandoned its policy about 7 months later, were actually coerced , particularly as there is also evidence that an undetermined number of employees had complied with the Union's demands. NAMM' S INC. 469 of her initiation fees and current dues. This finding is further con- firmed by the fact that Goldes belonged to the general class of em- ployees, discussed above and in the Intermediate Report, whom the Union required to pay back dues in order to secure membership in good standing and whose tendered initiation fees the Union applied in part payment of their back dues, notifying them that they had paid their initiation fees a long time ago when they first joined the Union. Also supporting our factual finding is a draft of a letter the Union sent to "contingent workers," of whom Goldes was one, stating, among other things, that "those members who have allowed their good stand- ing to lapse are required to re-acquire their good standing" by De- cember 3rd. It is settled law that a union-shop contract may not be retroactively applied to effect the discharge of an employee for failing to maintain membership in good standing by paying dues that accrued during a time when he was under no contractual obligation to do so as a con- dition of employment .6 Such back dues are not periodic dues within the meaning of Section 8 (a) (3) and Section 8 (b) (2) of the Act., Accordingly, we find that the Respondent Company, which had knowl- edge of the facts and circumstances surrounding the Union's request for Goldes' discharge, violated Section 8 (a) (3) in complying with the Union's request for Goldes' discharge as it had reasonable grounds for believing that membership was denied to her or terminated for reasons other than her failure to tender the periodic dues and the in- itiation fees uniformly required as a condition of acquiring or retain- ing membership. We also find that the Respondent Union violated Section 8 (b) (2) of the Act in causing the Company thus to discrim- inate against Goldes in violation of Section 8 (a) (3). By reason of the foregoing conduct, we further find that the Respondent Com- pany and the Respondent Union restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby violated Section 8 (a) (1) and Section 8 (b) (1) (A) of the Act, respectively. 3. A majority of the Board 8 agrees with the Trial Examiner that neither the execution nor the application of the clause in the Respond- ents' contract which provided for the transfer of certain exempt employees a into jobs covered by the contract and giving them seniority credit for their service with the Company, upon payment of a specified 6 International Union etc. (Wisconsin Axle Division , The Timken-Detroit Axle Company), 92 NLRB 965 , enfd. 194 F. 2d 698 ( C. A. 7) ; The Eclipse Lumber Company, Inc., 95 NLRB 464, enfd. 199 F . 2d 684 ( C. A. 9). '' Ibid. $ Member Peterson dissents from this finding in a separate opinion. 9I. e., supervisory or administrative personnel not included in the Respondents' agreement. 250983-vol . 102-53-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fee to the Union, was violative of Section 8 (a) (3) and (1) or Section 8 (b) (2) and (1) (A) of the Act. As fully discussed in the Intermediate Report, the Respondents negotiated the disputed clause, which is quoted at length in the Inter- mediate Report, to meet a special situation created by the Company's reorganization of its business. This reorganization resulted in a scheduled layoff of a large number of employees. Among them, was a group of employees exempt from the contract and outside the unit who had many hours of service and whom the Company was desirous of retaining in its employ in jobs covered by the contract. Although not adverse to their transfers to jobs within the unit as new employees, the Union opposed the Company's proposal to grant the transferees seniority credit for their service in exempt employment 10 because it would prejudice unit employees whose seniority would thereby be subordinated and who therefore might be subject to layoff in case of future reductions in force. The parties resolved their differences and adopted the disputed clause constituting 1 of 12 sections dealing with the subject of "Seniority: Layoff; Transfer." This clause permitted, under specified conditions, the transfer of 5 exempt employees per year who had at least 15 years' service and allowed them seniority credit for the length of their store service, upon the payment of a special fee 11 In accordance with this provi- sion, 3 transferees paid the prescribed fee and received seniority credit as provided in the clause. Thereafter, the Respondents modified the disputed clause; no question is raised concerning the validity of the modified clause. Like the Trial Examiner, we find no merit in the General Counsel's contention that the disputed clause was discriminatory. As discussed in the Intermediate Report, the Respondents concededly negotiated this clause in good faith motivated only by legitimate considerations and without any desire to discriminate against any employee on the basis of his union or antiunion membership or sympathies. Plainly, the exempt employees had no statutory or contractual right to transfer to a unit job with seniority accumulated in jobs not covered by the con- tract and therefore could not be deemed to be the victims of discrim- ination simply because they were required to pay a fee to secure such benefits. Nor can we find any legal basis for considering the disputed clause discriminatory simply because the relative seniority standing of some unit employees might be adversely affected by the transfers. 10 Under the contractual practice, seniority in unit jobs is generally determined by length of service in nonexempt employment. 11 In view of the majority's agreement with the Trial Examiner 's finding with respect to the disputed clause, the majority, like the Trial Examiner, finds it unnecessary to deter- mine whether the prescribed fee was a compulsory condition of transfer or employment or whether it was optional only if the transferees desired seniority credit for their service in exempt employment. NAAM's INC. 471 To do otherwise, would require the assumption that the Union, whose good faith is conceded, acted beyond the authority the Act vested in it as the exclusive bargaining representative of all the employees in the unit. The record does not warrant such an assumption. Accordingly, we shall dismiss the allegations of the complaint that the execution and application of the disputed clause violated the Act. The Effect of the Unfair Labor Practices Upon Commerce The activities of the Respondents, set forth above, occurring in con- nection with the operations of the Respondent Company, 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. The Remedy Having found that the Respondents engaged in unfair labor prac- tices, we shall order them to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent Company to offer Sara Goldes im- mediate and full reinstatement to her former or a substantially equiv- alent position,- without prejudice to her seniority or other rights and privileges. We shall also order the Respondent Union to notify the Respondent Company in writing that it has withdrawn objection to Goldes'reinstatement without prejudice to her seniority or other rights and privileges. As we have found that both the Respondent Company and the Re- spondent Union are responsible for the discrimination suffered by Goldes, we shall order them jointly and severally to make Goldes whole for any loss of pay she may have suffered by reason of the discrimina- tion against her, by payment to her of a sum of money equal to the amount that she normally would have earned as wages from Decem- ber 24, 1949, the date of her discharge, to February 12, 1952, the date of the Intermediate Report, and from the date of this Decision and Order to the date of the offer of reinstatement, less her net earn- ings during such periods,- to be computed in the manner provided below. However, the Union may terminate its liability for further accrual of back pay by giving the Company notice of withdrawal of objection to Goldes' reinstatement as provided above. The Union shall not be liable for any back pay accruing 5 days after such notice.'' 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 78 In accordance with the Board's usual practice, the period from the date of the Inter- mediate Report to the date of the Decision and Order herein is excluded in computing the amount of back pay awarded to Goldes because the Trial Examiner recommended dismissal of the complaint. 14 Pinkerton's National Detective Agency, Inc., 90 NLRB 205. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consistent with established policy,15 we shall order that the loss of pay be computed on the basis of each separate calendar quarter or por- tion thereof during the period from the Respondents' discriminatory action to the date of a proper offer of reinstatement 16 The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be deter- mined by deducting from a sum equal to that which Goldes would nor- mally have earned for each quarter or portion thereof, her net earn- ings,17 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order the Company to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due. Upon the basis of the foregoing facts and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Department Store Employees Union, Local 1250, Independent, now known as United Department Store Workers of New York, Locals 1250 and 1250-B, is a labor organization within the meaning of Sec- tion 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Sara Goldes, thereby encouraging membership in the Respondent Union, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guranteed in Section 7 of the Act, the Respond- ent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By causing the Respondent Company to discriminate against Sara Goldes in violation of Section 8 (a) (3) of the Act and to dis- criminate against Sara Goldes with respect to whom membership in the Respondent Union had been denied or terminated upon some ground other than her failure to tender the periodic dues and the ini- tiation fees uniformly required as a condition of acquiring or retaining membership, the Respondent Union has engaged in and is engaging u F. W. Woolworth Company, 90 NLRB 289. 36 However, as provided above , the Union may limit its liability for the amount of back pay by proper written notification to the Company that it has no objection to Goldes' reinstatement. 17 Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. NA"' S INC. 473' in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (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. 7. The Respondents have not engaged in the other unfair labor practices alleged in the complaint. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent Namm's, Inc., Brooklyn, New York, its officers,, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Department Store Employees Union, Local 1250, Independent, now known as United Department Store Workers of New York, Locals 1250 and 1250-B, or in any other labor organization of its employees, by discharging any of its em- ployees, or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected 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) Offer Sara Goldes 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 and copying, all payroll records, social-security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due under the terms of this Order. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its department store in Brooklyn, New York, copies of the notice attached hereto as Appendix A 18 Copies of such notice to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Company's representative, be posted by the Respondent Company immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. II. The Respondent, Department Store Employees Union, Local 1250, Independent, now known as United Department Store Workers of New York, Locals 1250 and 1250-B, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause the Respondent, Namm's, Inc., its officers, agents, successors, or assigns, to discharge or otherwise discriminate against its employees in violation of Section 8 (a) (3) of the Act. (b) Requiring employees subject to a union-security agreement authorized by Section 8 (a) (3) of the Act, as a condition of obtaining membership in good standing in its organization, to pay dues or fees not sanctioned by the Act under express or implied threats of dis- charge. (c) Restraining or coercing employees of the Respondent, Namm's, Inc., its successors or assigns, in the exercise 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 organiza. tion 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 the Respondent, Namm's, Inc., that it has no objection to the reinstatement of Sara Goldes without prejudice to her seniority or other rights and privileges. (b) Post at its offices and meeting halls in Brooklyn and Manhattan, New York, copies of the notice attached hereto as Appendix B 19 11 In the event this Order is enforced by 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." 19 See footnote 18. NAMM' S INC. 475 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representa- tive of the Respondent Union, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Second Region, signed copies of the notice attached hereto as Appendix B, for posting, the Respondent Company willing, at the Respondent Company's depart- ment store in Brooklyn, New York, in places where notices to employ- ees are customarily posted. (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondent Union has taken to comply herewith. III. The Respondents, Namm's, Inc., and Department Store Em- ployees Union, Local 1250, Independent, now known as United De- partment Store Workers of New York, Locals 1250 and 1250-B, their officers, representatives, agents, successors, and assigns, shall jointly and severally make whole Sara Goldes for any loss of pay she may have suffered by reason of the discrimination against her, in the man- ner prescribed in The Remedy section of our decision. IT IS FURTHER ORDERED that the complaint, as amended, against the Respondent Namm's, Inc., and the Respondent Department Store Employees Union, Local 1250, Independent, now known as United Department Store Workers of New York, Locals 1250 and 1250-B, be, and it hereby is, dismissed with respect to the alleged violations not found herein. MEMBER PETERSON, dissenting in part : I am unable to agree with the majority that the Respondents did not violate the Act by executing and applying the clause in the con- tract which permitted, under specified circumstances, the transfer of exempt employees into jobs covered by the contract with seniority accumulated in exempt positions, provided they paid the Respondent Union a fee equal to the amount they would have paid had they been members since 1944.20 Unlike my colleagues, I have the greatest diffi- culty in viewing, as a legitimate exercise of bargaining rights, such a contractual arrangement which provides for discrimination in the 21 This is the date when the Respondent Union began to function as the bargaining representative of the Respondent Company's employees in the appropriate unit. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire, tenure, or condition of employment favorable to the exempt employees willing to pay the price to the bargaining representative. The discriminatory character of this arrangement seems to me inescapable whether the clause be interpreted as requiring the pay- ment of the fee as a condition of transfer or employment or whether it be interpreted as simply prescribing an optional fee to secure a preferred seniority status. In either event, the qualified employees were compelled to pay the specified fee or suffer discrimination either in being denied employment or in being placed in a seniority position inferior to that of the transferees who paid the fee. By the same token, the prospect of preferred treatment encouraged the exempt employees to pay the prescribed fee to the Union, thereby necessarily encouraging membership in that organization within the meaning of Section 8 (a) (3)21 The nature of the fee exacted by the Union further reveals the vice in this arrangement which the majority approves. Without any pre- tense, this clause fixed the fee at a sum the transferees would have paid had they been members since 1944. But the Board and the courts have uniformly held,22 as the majority recognizes elsewhere in its decision, that an employee may not be discriminated against-in those cases by discharge-because of his failure to pay membership obliga- tions which had arisen at a time when there was no contractual obligation to maintain membership as a condition of employment. Nor, in my opinion, may parties enter into a contractual arrange- ment, such as that involved herein, which similarly provides for dis- crimination in employment depending upon the payment of member- ship obligations accruing at a time, not only when employees were not members, but when they weren't even in the bargaining unit. The fact that the Respondents negotiated this agreement in good faith to solve a difficult personnel problem resulting from a reduction in force may not excuse conduct which the Act otherwise prohibits. Accordingly, I would find that, by creating and putting into effect discriminatory conditions of transfer or employment, the Respondent Company violated Section 8 (a) (3) and the Respondent Union vio- lated Section 8 (b) (2) of the Act. I would also find that by this conduct the Respondent Company and the Respondent Union restrained and coerced employees in the exercise of their rights guar- anteed in Section 7 of the Act, in violation of Section 8 (a) (1) and Section 8 (b) (1) (A) of the Act, respectively. u Cf Public Service Company of Colorado , 89 NLRB 418. 12 International Union, etc. (Wisconsin Axle Division , The Timken-Detroit Axle Company), 92 NLRB 968, enfd. 194 F. 2d 698, The Eclipse Lumber Co., 95 NLRB 464, enfd. 199 F 2d 684 (C. A. 9). NAMM'S INC. Appendix A NOTICE To ALL EMPLOYEES 477 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 our employees that : WE WLL NOT encourage membership in DEPARTMENT STORE EM- PLOYEES UNION, LOCAL 1250, INDEPENDENT, now known as UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 and 1250-B, or in any other labor organization of our employees, by discharging any of our employees or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed 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 Sec- tion 8 (a) (3) of the Act. WE WILL OFFER Sara Goldes immediate and full reinstatement to her former or a substantially equivalent position, without prej- udice to her seniority or other rights and privileges previously enjoyed and we will make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement author- ized by Section 8 (a) (3) of the Act. NAMM's INC. Employer. By ------------------------ (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE To ALL MEMBERS OF DEPARTMENT STORE EMPLOYEES UNION LOCAL 1250, INDEPENDENT, now known as UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCALS 1250 AND 1250-B AND TO ALL EM- PLOYEES OF NAMM'S, INC. 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 cause or attempt to cause NAMM'S INC., its officers, agents, successors, or assigns, to discharge or otherwise discrim- inate against its employees in regard to their hire or tenure of employment or any term or condition of employment to encourage membership in our labor organization in violation of Section 8 (a) (3) of the Act. WE WILL NOT require employees subject to a union-security agreement authorized by Section 8 (a) (3) of the Act, as a con- dition of obtaining membership in good standing in our organi- zation, to pay dues or fees not sanctioned by the Act under express or implied threats of discharge. WE WILL NOT restrain or coerce employees of NAMM's, INC., its successors, or assigns, in the exercise 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 our labor or- ganization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL MAKE Sara Goldes whole for any loss of pay she may have suffered because of the discrimination against her. DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250, INDEPENDENT, now known as UNITED DEPARTMENT STORE WORK- ERS OF NEW YORK, LOCALS 1250 and 1250-B Labor Organization. By ------------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. NAMM'S INC. 479' Intermediate Report and Recommended Order Upon charges and amended charges of unfair labor practices duly filed on various dates from January 11 to May 11, 1950, by Regina Freiberg and Sara Goldes, the instant complaint was issued by the General Counsel of the Board on June 22, 1951, against the Respondent Company and Respondent Union named in the above caption. In substance the complaint, as ultimately amended, alleged violations of Sec- tion 8 (a) (1), (2) and (3) and 8 (b) (1) (A), (2) and (5) of the National Labor Relations Act (61 Stat. 136) by the Respondents in that: (1) They exe- cuted and unlawfully applied a collective-bargaining contract requiring em- ployees of the Company, as a condition of employment, to pay dues and fees retroactively for periods antedating their union membership and antedating the effective date of the union-shop requirements of the contract; (2) the Company (a) assisted and supported the Union by requiring such payments of employees; and (b) discharged Sara Goldes for failure to become a member of the Union, though having reasonable grounds to believe that the Union was requiring retroactive fees and dues, and to believe that she was being denied membership for reasons other than her failure to tender initiation fees and dues uniformly required ; (3) that the Union (a) threatened employees with discharge for failure to pay retroactive fees and dues, and (b) unlawfully caused and attempted to cause the Company to discharge and discriminate against employees. By answers filed both Respondents denied the commission of unfair labor practices. Pursuant to notice a hearing was held in New York, New York, on various dates between August 27 and October 23, inclusive, 1951. The General Counsel, the Company and the Union were represented by Counsel, participated in the hearing, and were afforded full opportunity to be heard, to present relevant and material evidence, and to submit briefs and proposed findings. A brief and proposed findings were filed by the Company. Motions to dismiss made at the hearing are disposed of by the following findings and recommendations. Upon the entire record and from observation of the witnesses, I make the following : FINDINGS OF FACT From admitted or undisputed facts it is found that (1) the Respondent Com- pany is engaged in commerce within the meaning of the Act, and (2) that the Respondent Union is a labor organization within the meaning of the Act. THE ALLEGED UNFAIR LABOR PRACTICES 1. The background of the dispute In June 1944 the Company executed a collective-bargaining contract with the Retail, Wholesale and Department Store Employees Union, Local 1250, C. I. O. Written contractual relations were maintained between those parties until January 31, 1949, at which time the last contract, which contained a checkoff clause, presumably valid, expired. During the term of the last contract-in September 1948-as a result of a schism within the organization, Local 1250 disaffiliated from the International union and the Congress of Industrial Organizations, and adopted the name of Department Store Employees Union, Local 1250, Independent. Except for the change in name and affiliation the local organization continued to function as before. It retained the same officers and continued in possession of the physical 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD properties. For a period of time after the disaffiliation the Company held in escrow the dues checked off under the contract, but ultimately it was authorized by the CIO to turn them over to the Independent. In February 1950 the Inde- pendent affiliated with the Distributive, Processing, and Office Workers of America, and in April 1950 it became a part of United Department Store Workers of America, District 65, itself an affiliate of the Distributive Workers Union. Following the disaffiliation in 1948 other unions besides the Independent sought to represent the Company's employees, among them Local 1250, Department Store Employees Union, C. I. 0.; the Retail Clerks Independent Association, A. F. L. (R. C. I. A.) ; Amalgamated Clothing Workers, C. I. 0.; and Local 804 of the International Brotherhood of Teamsters, A. F. L. A hearing upon petitions filed by Local 1250 C. I. 0., Local 1250 Independent (the Respondent herein), and Local 804 Teamsters was held before the Board. Prior to the hearing Local 1250 C. I. O. withdrew in favor of the Amalgamated Clothing Workers. On February 25, 1949, the Board directed an election, but rejected the Teamsters' proposed unit as inappropriate. Na?nrn's Inc., 81 NLRB 1019. Prior to the election the R. C. I. A. withdrew. The election was held on March 17, 1949, with two labor organizations on the ballot : the Respondent Union and the Amalga- mated Clothing Workers. The Respondent Union won the election and was certified by the Board as the bargaining representative on March 25, 1949. The contract, it will be noted, had expired on January 31, 1949. Following the certification the Company and the Respondent Union began negotiations for a contract. These were lengthy and protracted and it was not until October 4, 1949, that an agreement was finally executed in a unit stipulated to be the election unit. The expiration date of this agreement was January 29, 1951. This contract contained the following union-shop provision, article III: Section 2.-Union Shop. The Company shall employ and retain in its employ within the classifications covered by this agreement only employees who are members and remain members of the Union in good standing, as the term "good standing" is defined in the Labor-Management Relations Act of 1947. The Company agrees that at the end of thirty (30) days after the union shop provisions herein became effective as described in Section I of Article III hereof,' it will not have in its employ anyone, other than those excepted from the operation as of [sic] this agreement, and those with less than 30 days of employment, who is not a member of the Union in good standing unless with the written consent of the Union. Upon petition for a union-shop election, the Board conducted such an election on October 26, 1949, which the Union won, and on November 3, 1949, the Regional Director issued his certification to the effect that the Union was entitled to con- clude a union-shop arrangement. Since its execution the contract has been modified in several particulars by mutual agreement, and on November 3, 1950, it was renewed and extended to January 31, 1953. With one exception, more fully discussed later, none of the modifications is of materiality here. Though the General Counsel contends that the entire contract was unlawful both in execution and application, and void, because of section 9 of Article V relating to seniority, layoff, and transfer (an issue discussed further on), there 1 Section I of article III, so far as here pertinent, provided that the union -shop clause should become effective upon compliance by the Union with the requirements of the Labor Management Relations Act. NAMM'S INC. 481 is no claim that the union-security clause is independently invalid. The com- plaint, in fact, states that the "union shop agreement . . . became operative . . . according to the union shop procedures and conditions specified in the Act on December 3, 1949 ." In addition , the allegation in the complaint of violation of Section 8 (b) (5) seems to assert the validity of the union-shop clause, since Section 8 (b) (5) is applicable , by its terms, only where employees are "covered by an agreement authorized under subsection (a) (3)." Apart from the conten- tion that the whole contract is illegal , it is consequently assumed to be conceded here and it is therefore concluded for the purposes of this case that the union-shop clause , if considered independently, would be valid and enforceable. The issues are novel factually. Some present important legal questions of first impression in the administration of the Act. 2. Insistence upon payment of back dues Some employees ceased to pay dues to the Respondent Union after the expira- tion of the old contract in January 1949; others who were hired during the period of the schism did not join the Union at that time . After the union-shop certification in November 1949, these employees joined or rejoined the Union, which then sought to have them pay dues back to the date they ceased making such payments or were hired , whichever was the case. This action of the Union is alleged as an unfair labor practice . The material evidence as to the issue is as follows : As has been noted , the union-shop election was held on October 26, 1949, the certification issuing on November 3, 1949 . Construing the contract and the statute as making the union shop legally effective on the thirtieth day after the certification , the first date on which membership in the Union could validly be made a condition of employment was December 3, 1949. On November 11, 1949, however, the union issued a circular informing the employees that the deadline for joining the Union was November 26. The circular stated , in part : DEADLINE FOR JOINING UNION-SATURDAY, NOVEMBER 26TH. We wish to remind all those who have not joined our Union yet that the deadline is drawing near . By November 26th all workers at Namms-full- time, part -time and contingent-must have joined the Union ; which includes going through the appropriate procedure and paying all fees in full. On November 18 the Union issued another circular in effect revoking the first one. The second circular stated that the Union was extending the deadline to December 3. Whether any company employees joined the Union during the period of 1 week which elapsed between the two circulars is not disclosed. After the appearance of the first circular-and presumably before the distribution of the second-Regina Freiberg , a company employee , and one of a group which had supported the Amalgamated Clothing Workers during the representation cam- paign , visited the Board 's Regional Office in New York City. Freiberg's testi- mony is that she was there advised that membership in the Union could not be made a condition of employment until 30 days after the date of certification. Freiberg conveyed this information to others in her group . Agreement was reached among them to mail to the Union, through Freiberg, money to cover the $5 initiation fee and first month 's dues. On November 23, 5 days after the issuance of the Union 's circular extending the deadline to December 3, Freiberg , on behalf of herself and some 70 other employees , sent a letter to the Union stating the following , in part : Pursuant to the provisions of Section 8 (a) (3) of the Labor-Management Act of 1947, and the NLRB union shop certification of November 3rd, 1949- 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We, employees of Namms, Inc., are now compelled to join Department Stores Employees Union , Local 1250 Independent. On advice of counsel , enclosed we are forwarding to you $5.00 initiation fees each plus the dues for the current month of November 1949 for each employee. Martha Wolderich ( list #3, 56) paid $5.00 initiation fee only. For the group, REGINA FREIBERG. Why the group chose to join the Union during November, rather than December, is not explained. But, whatever the reason, the payment of the extra month's dues cannot be ascribed to pressure exerted by the Union's November 11 circular ; since the extension of the deadline had been announced by the Union before Freiberg's November 23 letter. There is therefore no basis for any finding of unfair labor practice in the issuance of the November 11 bulletin, corrected within 1 week thereafter. Whether there would be such a basis if there were evidence that, before the issuance of the November 18 bulletin, employees were influenced by the November 11 circular to join the Union under apprehension of loss of employment, is a question not presented by the evidence and not here decided. On November 30, 1949, Frieberg mailed to the Union $5 initiation fees and the amount of November dues for 6 more employees. In the meantime the Union had embarked upon what Mildred Loew, then its administrator or chapel director at Namm's, described in her testimony as an "educational" campaign. This, in sum, consisted of efforts by the Union in various ways to induce employees who had not paid dues, during some or all of the periods between the date of their employment during the schism, or between the expiration date of the old contract and the effective date of the union-shop clause in the new contract, to pay those dues. These efforts, more fully de- scribed hereinafter, were continued with varying degrees of success until about July 1950, at which time they were abandoned. Some employees complied; others refused. No request was made of the Company, however, for the dis- charge of, or any other disciplinary action against, those who refused. The reason for the Union's action, as described by Loew in her testimony, was that its members felt that all who had been employed during the period of the schism and the contractual hiatus enjoyed the benefit of the Union's continued existence; that all had received wage increases in the new contract retroactive to October 1948; and that the "heavy financial burdens of the struggle" to maintain the Union's status were properly an obligation of all employees. As I understand Loew's testimony, this group, some of whom supported rival unions during the representation dispute, were, from the standpoint of internal union relations, regarded by the Union and its membership more as delinquents or prodigals than as confirmed apostates. As such they were, as Loew put the delicate balance, under an "obligation," ethic and mores-wise, but under no "requirement," in the sense of external compunction, to pay their back dues. This "education" was accomplished in several ways. In the first instance those old employees who rejoined the Union after the union-shop election were informed that their initiation fees and dues were being applied to their old dues .account, leaving balances owing the Union. This was done, for example, in the case of a number of employees whose fees and dues were forwarded by Freiberg in her November 23 and November 30 letters. The following is a typical form letter sent by the Union to an employee who in November 1949 mailed in $8-$5 for the initiation fee, $3 for the current month's dues: NAMM'S INC. 483 DEAR MEMBER : In response to your recent letter and your enclosed check of $8 .00, please be informed that you are in error in regard to the way you wish the amounts to be applied . You do not owe an initiation fee. You paid your initiation fee some time ago. We, therefore , are applying the $8.00 to the following dues months which you owe, and are enclosing receipt for the same: Feb ., Mar., Apr ., May @ 2.00. We are enclosing a card showing the new dues scale which went into effect on June 1st , 1949, and a statement showing the balance you still owe, if any, which must be paid to bring you into good standing with the Union. We wish also to remind you to come to the Union Office to sign certain forms which all members are required to sign, before they can be considered in good standing. If you have any questions on these matters, please come to the Union Office to discuss them. This letter , it will be noted , stated that to be in "good standing with the Union" the employee "must" pay his back dues and in addition is "required" to "sign certain forms." A large number, if not all , of the Freiberg group, received such letters from the Union. In addition , the Union sought to collect dues back to the date of hiring from employees hired during the period of the schism and before the expiration of the old contract , and who did not join the Union at that time . Following is a typical letter sent on December 14, 1949, to such an employee who first joined in late November 1949: In receipt of your check for $7 .50 which $5 .00 [sic] has been applied to initiation fee. According to the Namm Management you were employed as of September 16, 1948. Please be informed that in accordance with the constitution of our Union all members are required to pay dues from the first day of employment , therefore , we applied the remaining $2.50 to September 1948 @ $2.00 and .500 was applied to October 1948 part payment. Your dues record now shows that you owe dues. 1948---------- October-----------------------.------------ 1. 50 balance 1948---------- November--------------------------------- 2.00 1948---------- December --------------------------------- 2.00 1949---------- Jan. through May @ $2.00 ------------------------ $10.00 1949--------- - June through Dec. @ $2.50 ------------------------ $17.50 Total owned---------------------------------------------- $33.00 We are enclosing a card showing the new dues scale which went into effect as of June 1st, 1949, these dues must be paid to bring you into good standing with the Union. Also we would like to inform you that on Monday nights at 6: 15 p. in. all new members are required to attend a new members class and at this class you will receive your Union book . The class is held at the Union Office, 385 Jay St., Brooklyn. Several assertions stand out in this letter . The first is that members are "required " to pay dues "from the first day of employment " which in this case included the period from February 1, 1949, to December 2, 1949, when there was no union -shop provision in effect. Loew 's testimony-whether considered as 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserting an enforceable legal obligation or merely a statement of moral precept- to the effect that the Union did not "require" the payment of back dues, is thus at variance with the position delineated in this letter . The second significant assertion in the letter is that the back dues "must" be paid in order to bring the recipient " into good standing with the Union ." The third is the declaration that new members were "required " to attend a "new members class." It is therefore found, on the basis of the Union 's correspondence , that it "re- quired" the discharge of these various obligations which it imposed on those applying for membership after the union -shop election . Whether such require, ment violated the statute is discussed at a later point. Other evidence as to the carrying out of the policy is to be found in the dues receipts which the Union issued to employees in the above categories beginning in November and December 1949. The receipts were marked "on account," even though explicit instructions were given by the employee to apply his payment to the initiation fee and/or current dues. In the dues books dues payments were applied to months prior to November 1949 instead of to current dues. The educational process was implemented, according to Loew's testimony, by persuasion by individual members of the Union or-as letters from the Freiberg group to the Union , in evidence , indicate-by "lectures" from union officials on the obligations of membership. The Freiberg group did not submit without protest , however. Upon receiving dues receipts or stamps from the Union showing that the money which they had forwarded for the payment of initiation fees and current dues had been credited on old dues, they returned these receipts, denied that they had ever been mem- bers of "Local 1250, Independent," asserted that the union-shop clause could not legally be made retroactive , and demanded ( 1) that they be considered as appli- cants for new membership , and (2 ) that the Union forward a receipt for the initiation fee and for the current month's dues. There is no evidence that the Union responded to these communications. On January 11, 1950, Freiberg filed a charge with the Board alleging, inter alia that the Union was violating Section 8 (b) (1) and ( 2) of the Act by the retroactive application of current dues payments . Nevertheless , the Union con- tinued its efforts for several months , by the described means, to effect such collec- tions. During that period some employees did submit , or were persuaded, whatever the case may be, and paid up the back dues. Many did not however. The numbers in each category are not disclosed. But finally in July 1950 , the Union abandoned further such efforts. Since that date all dues payments have been currently applied . Those who resisted the retroactive payments but who had met their current obligation regularly since November were credited with such payments , and their dues books are marked paid up to the month of last payment . The disputed practice has thus not been applied since July 1950. So far as appears , while it was being followed, the Union's policy in this respect was uniformly applied to all who fell within its formula. While there is a sug- gestion from the General Counsel to the effect that the Union was seeking to penalize or discriminate against employees who had adhered to the CIO during the schism and opposed the Independent , such as the Freiberg group, there is no substantial evidence, in my judgment , to warrant such a conclusion. While it is true that all within the Freiberg group had been CIO supporters , all had likewise not paid dues to the Union during the contractual hiatus. There is no evidence that others similarly situated were excused from such payments during the time the Union was insisting upon them from the Freiberg group. NAMM'S INC. 485 The Union made no requests for discharge or discipline of any of the group who refused to made the retroactive payments. The Company did not discharge or discipline or threaten to discharge or discipline employees for failure to do so. Nor is there substantial evidence that threats of discharge were made by the Union for failure to meet the "obligation." Loew, in fact, testified that no threats were made, and there is no contrary testimony. There is, indeed, affirm- ative evidence substantiating Loew's testimony in this respect. Thus Tillie Wachs, a CIO adherent and former union member, who received one of the form letters quoted above, refused to accept dues receipts for old dues, denied being obligated to pay them, and insisted upon her right to be treated as a new member and to a current dues receipt. A letter among the exhibits from Wachs to the Union dated November 27, 1949, and embodying her views states the following, in part : . . Mr. Halpern [one of the Union officials who participated in the "Educational" program] told me that I wasn't wanted as a union member. He said this after I refused to listen to his full lecture criticizing and condemning me for the exercise of my legal rights in the choice of a union. Second, I am not in error as to the way I wish the seven dollars I sent you applied. According to the National Labor Relations Board, and even according to what your own Mr. Halpern said, I do not have to pay any back dues, and I can definitely enter the Union at this time as a new member. The significance of this letter is twofold. First it indicates that Wachs was assured by Halpern that she would be accepted into membership as a new member even though she "wasn't wanted as a union member." Union member- ship was thus apparently open to all who applied, CIO adherents as well as others ; and those whom the Union did not want, as well as those it did. Secondly it indicates that Halpern specifically told Wachs that she did not have to pay back dues as a condition of membership, and, presumably, good standing. A fortiori, then, payment of back dues was not made a condition of employment by the Union. It is against this background of apparent union purpose that the union letter of December 14, 1949, quoted above, is to be interpreted. The assertion therein to the effect that members were "required" to pay dues from the date of em- ployment in order to be "in good standing with the Union," and to attend a new members class, must be construed as a statement of internal union policy with respect to the relationship between the member and the organization, and not as a threat of deprivation of employment for failure to comply. The only evidence, in my judgment, as to any discharge threats by the Union directed against any employee in the Freiberg group or similarly situated, who paid his initiation fee and regular monthly dues but not his back dues, is in the case of 2 such employees-Morrell and Darcy. Both were having their dues checked off at the time of expiration of the old contract and both ceased to pay dues during the contractual hiatus. Both were in the Freiberg group, sent in their initiation fee and November dues in November 1949, and both made the current monthly payment regularly thereafter. Like the others, they were also dunned for back dues for the period from January to November 1949 and their payments were up to July 1950, regularly credited by the Union on their old dues account. But under date of May 24, 1950, both Darcy and Morrell received identical form letters from the Union different in format from those previously described. These letters stated, in part, that Darcy and Morrell were "badly in arrears" In the "payment of dues" ; and unless the matter was straightened out within 250983-vol. 102-53-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following week the Union would be "compelled to have [them] removed from the payroll." No other employee in the Freiberg group received such a letter. The uncontradicted testimony of Union Recording Secretary Agnes Devlin is that these letters, the customary delinquency form letter, were erroneously sent because of a bookkeeping error in the union office indicating that Darcy and Morrell had not sent in their current payments, and that the mistake was im- mediately rectified when called to the Union's attention. No futher communica- tions of similar import were received by Darcy and Morrell and no request was ever made for their discharge. It is consequently found that these letters were issued through clerical error and do not indicate unfair labor practices. Conclusions as to Union Efforts to Collect Back Dues The complaint alleges that the above-described efforts of the Union to collect dues retroactively constituted violations of three subsections of the Act: 8 (b) (1) (A) by restraint of employees in their right to engage in or to refrain from union activity; 8 (b) (2) by attempting to cause the Company to discriminate against employees for failure to pay charges other than current dues; and 8 (b) (5) by requiring the payment of excessive and discriminatory fees as a condition precedent to membership in the Union. These propositions will be discussed in reverse order. The 8 (b) (5) allegation: The case raises a number of questions regarding the construction and application of this subsection, most of them questions of first impression : (1) the meaning of the word "require"; (2) whether the back dues sought to be collected by the Union constituted a "fee"; (3) whether such pay- ment was a "condition precedent to becoming a member" of the Union; (4) whether the sums required were "excessive and discriminatory"; ( 5) whether the subsection is applicable even if the payment of such fees is not made a condition of employment ; 2 and (6) whether any finding of violation can be made in the absence of evidence as to "practices and customs" in the industry and "wages currently paid" to the employees affected.' I find it unnecessary, however, to consider any question but the second one for the disposition of this issue, namely, whether the back dues constituted " fees." There are as yet no Board or court decisions defining the meaning of the term "fee" in subsection 8 (b) (5). In my judgment the legislative history of the Act indicates that Congress was referring only to "initiation" fees, and that the word has no application to genuine dues. There can be no doubt that in the instant case, whether legally collectible under the statute or not, the sums sought to be collected were genuinely dues, and not a device by which the Union sought to camouflage the imposition of higher initiation fees. As such, they are excluded by Congress from the operation of Section 8 (b) (5). Subsection 8 (b) (5) had its origin in the House of Representatives in H. R. 3020, Section 8 (c) (2) of which forbade the imposition of un-uniform dues, and of initiation fees in excess of $25 unless "reasonable under the circum- stances." (Legislative History of the Labor Management Relations Act, 1947, 2 To illustrate : a union having a valid union-shop contract refuses to admit an employee to membership without payment of an excessive and discriminatory fee ; but tell him that it will not, and does not, seek reprisals in his employment for such nonmembership. Query whether the subsection is applicable. 3 The subsection states, in part, that "In making ... [ a finding of violation] the Board shall consider , among other relevant factors, the practices and customs of labor organiza- tions in the particular industry, and the wages currently paid to the employees affected." There is no such evidence in the instant record. Whether this language prohibits a finding of violation in the absence of such evidence or instead merely requires the Board to consider the eviden oe if offered, is an open question as of this time. NAMM'S INC. 487 U. S. Govt . Printing Office, 1948, p. 53.) It passed the House in this form ( Legis- lative History p. 179 ). Throughout its progress through the House both pro- ponents and opponents of the bill consistently recognized the distinction between initiation fees and dues . See, for example , the Report of the majority of the House Labor Committee (H. R. Rep. No. 245, 80th Congress , 1st Session (1947) pp. 7, 31; Legislative History pp. 298, 322) ; the minority report (Rep. p. 76, Legislative History p. 367) ; and the Supplemental Minority Report (Rep. p. 114, Legislative History, p. 405). In the House debate this distinction was maintained . See, for example, remarks of Representative Powell , 93 Daily Congressional Record 3586, April 16, 1947; Legislative History p. 695; and remarks of Representative Meade, 93 Daily Congressional Record A 2011 ; Legislative History p. 868. The bill which passed the Senate had no comparable provision . In conference the requirements of Section 8 (c) (2) of the House bill respecting dues was dropped, and only the provision regarding initation fees retained-in revised form. This became the present subsection 8 (b) (5). The House debate on the Conference action reflects the exclusion from the operation of subsection 8 (b) (5) of any prohibitions against discriminatory dues. It is clear from debate that "fee" meant "initiation fee." See remarks of Representative Hartley, 93 Daily Congressional Record 6540, June 4, 1947, Legislative History 882 ; and of Representative Landis, Ree. A 2824 , June 5, 1947, Legislative History 905). The Report of the House Conference Managers reflects the same view (H. R. Rep. No. 510 pp. 45, 46, Legislative History pp. 549, 550). Similar agreement that 8 (b) (5) was narrowed to initiation fees as dis- tinguished from dues is evident from the debate in the Senate on the Conference action . See for example , Senator Taft's explanation of the subsection (Con- gressional Record 6601, June 5, 1947, Legislative History p. 1540) and the .comments of Senator Morse (Congressional Record 6610, June 5, 1947, Legislative History 1554). To these legislative opinions may be added the observation that where Congress ,chose to legislate with respect to union dues, it did so by specific use of the word as distinguished from fees. See the proviso B to Section 8 (a) (3) where Con- gress prohibited discrimination against employees for nonmembership in a labor organization if the employer had reasonable grounds for belief that membership was being denied or terminated for reasons other than the failure of the employee "to tender the periodic dues and initiation fees uniformly required ." [ Emphasis supplied.] If there were any doubt of the intent of Congress to exclude dues from the operation of 8 (b ) ( 5) and limit its coverage to initiation fees, that doubt is dispelled by Senator Taft's analysis in the Senate following Senate debate on the Conference Report. This analysis , prepared, in the words of Senator Taft , for the purpose of refuting "erroneous" and "mistaken statements made on the floor" about the Act ; statements "not justified by the text of the bill," and "in order to make clear the legislative intent," ( 93 Daily Congressional Record 7000, June 12, 1947, Legislative History 1622) gave the following explanation of the subsection : (93 Daily Congressional Record 7001, Legislative History 1623.) Section 8 ( b) (5). Initiation fees: This section was taken in part from the House bill and make it an unfair labor practice for a union to charge excessive or discriminatory initiation fees with respect to employees covered by a compulsory union membership agreement . It has been argued that the effect of this section is to give the Board vast discretion in regulating 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the dues and initiation fees of all labor organizations and thereby putting the government in charge of the internal affairs of unions. The express language of this subsection shows how unfounded such an argument is, for it is only in cases in which the employees affected are covered by union shop or maintenance-of-membership agreements that the Board has any jurisdiction. Even then it is limited to initiation fees and does not cover dues. It was the opinion of the Conferees that unless such a provision was inserted, the restrictions on the union shop in Section 8 (3) could be easily circumvented. [Emphasis supplied.] On the basis of the above authority, it is found that the collection of back dues by the Union in the instant situation is not within the purview of Section 8 (b) (5). It is therefore unnecessary to pass upon other presented questions as to the construction and applicability of the section. Section 8 (b) (2) : The complaint also alleges that the attempt to collect the back dues was violative of Section 8 (b) (2). That section makes it an unfair labor practice for a union "to cause or attempt to cause an employer to discrimi- nate against an employee" denied union membership for reasons other than failure to tender periodic dues and initiation fees. In the instant case the Union did not seek discrimination by the Company against any of the employees from whom it requested the back dues. It did not communicate to the Company any requests for action against them, nor, so far as appears, any information whatever as to their status. This subsection requires some action by the Union directed to the employer. There being no substantial evidence of any such action here, there is no basis for finding a violation of Section 8 (b) (2). Cf. New York Shipbuilding Corporation, 89 NLRB 1446. Section 8 (a) (3) : Since the Company at no time required payment by employees of the back dues the allegation of violation of Section 8 (a) (3) by the Company is in this respect likewise unsupported. Section 8 (b) (1) (A) and 8 (a) (1): So far as this particular issue is con- cerned, the essence of the unfair practice alleged in the complaint lies in action by the Union and the Company, . . . requiring employees of the Respondent Company to pay, in addition to their obligation to become and remain members in good standing of the Respondent Union, pursuant to the terms of said union shop agreement, fees and dues for a period prior to the effective date of said union shop agreement as a condition of continued employment. [Emphasis supplied.] As has been seen, the payment of the back dues was not here a condition of continued employment. That allegation not being substantiated the basis of the charged violation disappears. I regard the emphasized clause as an integral element of the issue which the General Counsel wished to test, and not as mere surplusage. Upon this construction of the pleadings, I do not find presented, and therefore do not decide, the question whether a violation of Section 8 (a) (1) or of 8 (b) (1) (A) would be made out under different circumstances. I express no opinion as to the applicability in such a case of the proviso to Section 8 (b) (1) (A) to the effect that "this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership." There being no evidence of discrimination by the Company against any em- ployee for failure to pay back dues, or of any effort on its part to assist the Union in the collection thereof, the allegations of violation of Section 8 (a) (3) and 8 (a) (2) in this connection also fall. NAMM'S INC. 489 It is found that the above -stated actions of the Company and the Union with respect to collection of back dues did not , upon the pleaded and litigated issues, constitute violations of any section of the Act. 2. Article V section 9 of the contract Article V of the October 4, 1949, contract is entitled "Seniority : Layoff : Transfer." It contains some 12 sections of detailed provisions regarding those matters. The original section 9 of that article provided as follows : Section 9 ( a). Exempt employees shall not be transferred to any de- partment covered by this agreement so long as there are any employees laid off less than 7 months in the area of seniority into which the transfer is desired except that the Company may transfer not more than five (5) exempt employees in any one year provided; (1) that such employees have not less than fifteen ( 15) years of store service ; ( 2) that such transfer shall not result in the replacement of an employee covered by this agree- ment in the area of seniority with two or more years of seniority ; and (3) that such employee shall pay to the Union a fee in an amount equal to all .sums that would have been paid from June 1944 ( had he been a member of the Union since then ). Such employees shall receive therefrom full store seniority . [Emphasis supplied.] (b) Where exempt employees, except as above provided, are transferred to any department covered by this agreement, union seniority shall com- mence as of the date of employment in such nonexempt category and shall be deemed for all purposes to be newly engaged employees. The General Counsel contends that the emphasized portion of the quoted section, and transfers made pursuant to it, are unlawful and constitute dis- crimination ( 8 (a) (3)), assistance and support to the Union (8 (a) (2)), restraint and coercion ( 8 (a) (1) and 8 (b) (1) (A)), and causing the Company to discriminate ( 8 (b) (2) ). "Exempt" employees are employees excluded from the contractual bargaining unit. The history of section 9 is as follows : Early in 1949, apparently , as the result of managerial reorganization, the Company drastically reduced its staff , laying off some 300 regular employees out of a total staff of 1,100 . While this reduction was in progress the Union and the Company were negotiating the October 4, 1949, contract. The reduction affected both exempt and nonexempt categories. In the process a number of exempt employees of many years service in the store , some in supervisory positions , were given termination notices. The Company was desirous of retaining some of these employees by shifting them into nonexempt positions, but at the same time it wished them to have their years of store-service credited as seniority within the bargaining unit. Under the prevailing practice seniority within the bargaining unit was based substantially on length of service in nonexempt employment ; and layoffs were normally in the order of seniority. To this proposal the Union demurred, point- ing out that in reductions in force, union members of many years employment within the bargaining unit might be reduced before the transferees. The Union had no objection to the transfers, however, so long as the seniority standings of unit employees were not prejudiced. This basic disagreement continued for some time, apparently contributing to the protraction of the negotiations. Ulti- mately, however, the problem was settled in the manner set out in section 9 of article V of the contract. Who proposed this solution is not altogether clear from the evidence, though it was most likely the Union. But the impression re- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flected by the record is that throughout the negotiations the Company was the active force behind the transfer proposal and the Union a passive, if not indeed a reluctant, participant. The reason for the selection of the June 1944 date in section 9 was because that was the time the Union first began to function as the contractual majority representative for the appropriate unit. By August 1949 the Company and the Union reached agreement on all phases of the contract including section 9 of article V, with the exception of the wage clause. During that month the Company transferred three exempt employees of long service to nonexempt categories : Meredith, Ellingsen, and Gabel. At the time of the transfer, Company Vice-President Zneimmer indicated to the three employees that after the bargaining contract was signed and the union-shop election held they might be required to make some back-dues payments to the Union. Zneimmer further said that the Company would assist them if they had difficulty meeting the obligation.' In mid-December 1949, after the union-shop clause became effective, Zneim- mer summoned the 3 employees to his office and gave them each $100 to help, defray the payment of dues back to 1944. Each of the 3 then paid the Union. The amount of back dues varied from $126 in the case of Ellingsen to $136, or $139 in the case of Gabel. The difference between $100 and the total amount due was paid by the employees. Ellingsen, accompanied by Gabel, made her payment to Administrator Loew at the union office. At that time Loew explained' to Ellingsen, in substance, that the reason for the payment was to protect Ellingsen's seniority which, Loew said, Ellingsen would lose if the payment were not made.` At the time of these payments by Meredith, Ellingsen, and Gabel, the Union's income from dues paid by company employees under the contract amounted to approximately $2,400 per month. In February 1950 Daisy Amundsen, an executive of 10 years' service in an exempt position, was informed that she was being terminated. Amundsen then went to see Company President Miller. At that time the Company was negotiating with Elizabeth Arden, cosmetic manufacturers, with the view of having a full-time demonstrator of Arden cosmetics stationed in the store ; the salary to be paid entirely by Arden. Such a position was an exempt one under the contract . Upon ascertaining that Amundsen wished to remain in the store, even in reduced position , President Miller suggested to Company Merchandise Manager Burston that Amundsen would be well suited to the Arden job. An Interview was arranged with Arden officials for Amundsen. After the interview Arden informed Merchandise Manager Burston that Arden was willing to accept her as a demonstrator of their products, but that they were not willing to assume payment of any portion of her salary. Amundsen understood throughout that her securing the position was dependent upon her being acceptable to Arden and upon their willingness to pay her salary. Company Merchandise Manager Burston, and later Company Vice-President Zneimmer, thereafter informed Amundsen that because of Arden's position in the matter, no job of any kind was 4 This finding is based on the testimony of Zneimmer , Meredith , and Ellingsen. Ellingeen 's testimony is that Loew said that the sum would have to be paid . . . in order to be in good standing or else I would lose my seniority in the store. That I was taking a union job and that was the only way I would get on equal terms with the other girls otherwise I would lose my seniority. There were other members who had been in the union longer than I. [Emphasis supplied.] Meredith testified that Loew told her that "to keep that job you would have to pay your back dues " I think it unlikely that Loew would tell Ellingsen that the payment was necessary to preserve seniority while telling Meredith that it was necessary to keep the job I conclude that Meredith misunderstood or incorrectly recalled the conservation. NAMM'S INC. 491 available for her. Aiundsen was given her severance pay and left the Com- pany's employ. At some early point in the negotiations Personnel Manager Lucas told Amundsen that if she accepted a union job she would have to pay back dues in the amount of around $150. At that time Lucas either misapprehended or did not know which position Amundsen was being considered for by Burston and Miller. It has been noted that the Arden job would not have been within the appropriate contract unit About a month before the Amundsen incident, on January 11, 1950, Regina Freiberg filed a charge with the Board alleging, inter alia the invalidity of sec- tion 9 of article V of the contract. Company Vice-President Zneimmer then suggested to Union President Carnes and other union representatives that pos- sibly the clause regarding back-dues payments was a violation-the Union dis- agreeing-and that the wisest course would be to eliminate it. Around May 1950 Field Examiner Clement Cull of the Board investigated the case. There- after the Company and the Union seriously discussed revision of the section. As a result under date of July 24, 1950, the Union, by letter, proposed that the following clause be substituted for section 9 (a) : Exempt employees shall not be transferred to any department covered by this agreement so long as there are any employees laid off in the area of seniority into which the transfer is desired, except that the Company may transfer not more than five exempt employees in any one year provided (1) that such employees have not less than 15 years of store service; and (2) that such transfer shall not result in the replacement of an employee covered by this agreement in the area of seniority. This proposed change, it will be noted, suggested several significant modifica- tions in section 9 (a). These were (1) the elimination of any requirement for payment of a fee for back dues by transferred employees; ( 2) the elimination of the provision permitting transfer with accumulated seniority if there were unit employees in the seniority area who had been laid off 7 months or more. Under the proposed revision such transfers could not be effected if there were any laid laid-off employees in the seniority area; (3) elimination of the provision which permitted the transfer to replace unit employees with less than 2 years' seniority. Under the proposed revision no replacement of unit employees was permitted. The latter two modifications evoked objection from the Company and the negotiations dragged on until September 28, 1950, when the Company accepted the Union's proposed revision and the contract was accordingly amended.' Even before the Company's acceptance of the amendment, however, the pro- vision of section 9 for back payment had apparently been tacitly abandoned by the parties. Following the execution of the contract and up to the date of hearing only four employees appear to have been transferred from exempt to non- exempt categories . These took place on May 15, July 24, and August 28, 1950, 6 There is some confusion in Amundsen's testimony regarding the circumstances sur- rounding her acceptance of the severance pay. While testifying to the above facts, Amundsen also stated that she decided to take the severance pay, rather than the job, because of, among other things, a disinclination to pay the union dues. How she could have concluded that she had any choice in the matter other than acceptance of her sever- ance pay, while admittedly understanding that there was no employment available for her, is not clear. This confusion, however, is not of critical bearing on the issues. 7 While there is some suggestion by the General Counsel that the amendment was pre- dated, or never occurred, there is no apparent basis for such a finding. The finding as to the revision is based on Company Vice-President Zneimmer 's testimony and correspondence he identified as passing between the parties. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and on February 19, 1951. All four transfers were with accumulated seniority without back payment or any demand or suggestion by the Company or the Union that a fee for back dues be paid. Conclusions as to the Transfers It seems obvious from the above statement that there was no motive, pur- pose, or intent in either of the parties in enacting section 9 of the original con- tract to secure an illegal result. The concern of the Company was to assure the continued employment of employees with many years' service. In addition to humanitarian and personnel policy reasons the Company had a business in- terest in such a result. If terminated by reorganization the exempt employees were entitled to 1 week's severance pay for each year of service. As for the Union, its interest was that the accumulated tenure of employees in the appro- priate unit should not be, in its view, bestowed as a gratuity upon persons who had not earned the protection by service in the unit. That all within the unit were union members does not detract from the force of the anxiety. That it was solely this not unreasonable concern which animated the Union is evident from its stated position, at the outset of the Company's overtures, to the effect that it had no objection to the transfer of exempt employees into the unit provided that their years of service were not considered as unit seniority. That proposal, of course, did not meet the Company's objectives. Though the complaint seems to suggest that the discrimination charged was discrimination only against the transferred employees in the requirement that they make the back payments, the General Counsel's argument at the hearing indicates that he considered it discrimination against unit employees as well, by subordination of their seniority status ; and against laid off unit employees whose restoration might be prejudiced. In my judgment neither the original section 9 of article V nor any of the transfers constituted unfair labor practices. It could scarcely be, and I do not understand that it is, contended that the transfer of exempt employees into the unit with accumulated seniority, if motivated solely by legitimate business considerations unconnected with union factors, and with the consent of the unit bargaining representative, and without the payment of the stated fee, would be illegitimate. The resulting discrimination there-if such it can be called-against employees in the bargaining unit is simply the consequence of administrative change within a field in which an em• ployer and union are usually free to legislate. Seniority within industry is not normally a status created by statute law, but a right acquired by contract; and what may be contracted for can ordinarily be contracted away for reasonable and proper ends. In the case of Aeronautical Lodge v. Campbell, 377 U. S. 521, the United States Supreme Court held that a collective bargaining contract which granted "top seniority" to union officials was not in conflict with the Selective Service and Training Act of 1940. There an employee, hired in 1942, was in- ducted into the armed services 2 years later. While he was in service the Union modified an existing contract so as to give union chairmen top seniority. In January 1946 the employee was discharged from the Army and restored to his job. Within a year thereafter he was laid off in a reduction in force effected on the basis of seniority. At the same time union chairmen of lesser seniority in terms of length of service were retained. In upholding the validity of the layoff the Supreme Court said that, ... a provision for the retention of union chairmen beyond the routine re- quirements of seniority is not at all uncommon and surely ought not to be deemed arbitrary and discriminatory. NAMM'S INC. 493 As I understand that decision , the validity of the arrangement rests upon the propriety of the motives of the contractors and the reasonableness of the means and objective. See also N. L. R. B. v. Potlatch Forests, Inc., 189 F. 2d 82 (C. A. 9). And if, in the hypothetical case stated above, there is no illegal discrimination where no consideration passes between the contracting parties or the benefici- aries, it is difficult to percieve why there should be if consideration does pass. The status or tenure of the subordinated employee is not one whit different in the two cases . If a legitimate union and employer can legally confer seniority without the payment of dues by employees , I see no reason why, so far as the issue of discrimination is concerned , they cannot achieve the same result when requiring such payment; if reasonably related to a proper objective not incon- sistent with the statute and its policies . I see nothing in Section 8 (a) (3) or its provisos forbidding it. The question then is whether the motives of both parties were proper, the objectives consistent with the policies of the statute, and the means used to secure the result reasonably directed to that end. As to the motives, I think it clear that these were proper and legitimate ; I see nothing in the parties' action inconsistent wth the law or its policies ; and I find the means used not unreasonable . Certainly it is not unlawful for a union and an employer to seek to protect long company service. And if employees can be asked to waive their earned security it does not strike me as unreasonable for them to insist upon some consideration in exchange for it . And whether the consideration flows to the employees directly or whether it comes to them in- directly through their bargaining representative ought not to affect its validity. That the consideration required may be in the form of a fee measured by length of service by the union to the appropriate unit does not seem to me significant ; any more than if it were a fee in the nature of a premium for insurance protec- tion based upon the amount of the policy, or the number of years of employment with the company. All the employees who were transferred desired the protection. Since the Company and the Union could properly bestow it for legitimate nondiscrimina- tory purposes, the action ought not to be lightly held invalid. In view of the benefits which the transferees derived, I do not see any discrimination as to them. With respect to the employees in the unit, whose seniority rights might have been affected , the act of their bargaining representative was in this kind of matter the act of themselves. But even if some were shown to have dis- approved , the resulting disability would be a noncompensable casualty incurred in the process of accommodation of competing interests . Given the same valid purpose, namely, the protection of years of company service, the fact that con- sideration flowed from the transferees to the unit employees through their bargaining representative, scarcely converts a nondiscriminatory result into a discriminatory one. It is consequently found that there was no discrimination involved in the adoption of section 9, article V of the 1949 contract, or in its application. There is therefore no need to discuss the application of provisos A and B of Section 8 (a) (3). But, in any event, I find inapposite to this type of situation the line of Board decisions holding unlawful a requirement , conditioned upon employment, that employees pay union dues for a period when they were under no obligation by the Act to do so. See, for example, New York Shipbuilding Corporation, 89 NLRB 1446. In those cases the affected employees were entitled , as a matter of statutory right, to the status of which they were deprived. In the instant case the transferees had no recognizable claim under law to employment in the 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit with accumulated seniority ; except such claim as the contract may have given them. Hence the withholding of such status could not be, in the circumstances presented here, a deprivation of any vested right under the statute. Whether it would be under other circumstances I do not find necessary to decide. Nor do I find that the Union was thereby supported or assisted, any more than a legitimate union is supported by the legal checkoff of union dues from wages, or by payment for time spent by union stewards in the processing of grievances, or by other reasonable grants of privilege to an accredited representative union. Employer contributions in terms of money or services to a labor organization are, of course, unlawful where their purpose or necessary effect are to restrain employees in the exercise of their statutorily guaranteed rights, or to support a union. But here there was no such purpose; and a scrutiny of the means employed refutes any conclusion that they would have the prohibited effect. The restrictions placed upon the transfers negates the inference that under the circumstances the device could have constituted support or assistance. In the first place the contract provided that only five such transfers could be made in any 1 year. Secondly, they could not be effected if there were employees in the unit in a layoff status for less than 7 months. Third, the transferees were required to have at least 15 years' store service to be eligible for transfer with seniority. And, finally, the transfers could not result in the replacement of any unit employee with 2 years of seniority. Under these severe restrictions the transfer policy could scarcely result in such substantial illegitimate benefit to the Union as to constitute support and assistance. Several other facts may be noted parenthetically. Only three employees ever made the payments provided by the contract; and the contract provision had no connection with union security: It was incorporated in article V, dealing with seniority, whereas the union-security clause is in article III. I do not find the payments by the Company of $100 each to Meredith, Ellingsen, and Gabel to be assistance and support of the Union. In making these contribu- tions the Company was acting in its own legitimate self-interest, and not at- tempting to prop up the labor organization. The payment of $300 into the union treasury for the purposes here described, at a time when the Union's dues income from the employees approximated $28,000 annually, does not appear to constitute a substantial contribution to the Union's maintenance. In view of the conclusions here reached, it is unnecessary to decide whether, as the General Counsel contends, payment of the fee was compulsory under Section 9 (a), (as Personnel Manager Lucas' statement to employee Amundsen, Vice-President Zneimmer's statement to Meredith, Ellingsen, and Gabel in August 1949-and perhaps a distributive reading of Section 9-suggest) ; or was instead, as the Company and Union insist (and Ellingsen's testimony as to her conver- sation with Loew suggests) entirely at the option of the transferred employee.8 3. The discharge of Sara Goldes The union-security provision of the October 4, 1949, contract became effective on December 3, 1949. Following receipt of the Board's certification of results of the union-shop election the Union distributed circulars among the employees, two of which have been mentioned earlier, warning them of the prospective operation of the union shop and of the deadline for acquiring membership. In addition notices were posted on the bulletin boards in the plant, and other means, 8 In this connection it may be noted that there is testimony to the effect that payment was optional. In view of my disposition of the case, I do not reach the issue as to whether the s*ction requires testimonial interpretation. NAMM'S INC. 495 such as personal communication , utilized to publicize the situation. Notices were sent to employees by both the Company and the Union. Sara Goldes was an employee of the Company in what is known as a "con- tingent" category . She had joined the Union , pursuant to requirement, in 1946 when it was C. I. 0., but ceased to pay dues when the contract expired in January 1949. She was a quiescent member , did not attend meetings , and she did not participate in any of the activity at the time of the schism or during the representation dispute. In general , the Union required all employees covered by the union -shop clause to join by December 3, 1949. A number of contingent employees failed to do so, however. Instead of seeking their discharge , the Union waited several days and on December 7, 1949, it sent a letter to the Company stating the following : Enclosed you will find a list of your employees who have failed to put themselves in good standing with the Dept. Store Employees Union-Local #1250 Independent. Because they are Contingents and because of their youth we are making an allowance and extending the period until Thursday December 15th, for them to correct the above matter altho they have been notified as to their responsibilities. It is suggested that you speak with these employees and warn them of the consequences for failure to put themselves in good standing by the above stated date . We request that those who do not do so be removed from their jobs on December 16th, 1949, in accordance with the terms and provisions of the collective bargaining agreement .. . On December 15 Goldes had not yet joined the Union or made any effort to do so. On December 19, 1949, the Union requested that she be discharged. ,On December 22, she was notified by the Company that she would be discharged on the 24th . Goldes' testimony is that Personnel Manager Lucas gave as the reason that : "the union had requested to have me sent away because of non- payment of back dues . I was not in good standing." Upon Lucas' suggestion that she go to the union office and "see what [could ] be done about it," Goldes then saw Union Official Mildred Loew. There is little direct conflict between Goldes and Loew as to what was said ; the differences apparently being ascrib- able mainly to omissions or inversions in the narrative of one or the other. Goldes' version is as follows : I told [Loew ] that I didn 't know anything about not paying back dues. I am willing to pay whatever I owed . She said, it wasn't a question of back dues . She said, I was being let out because I was not in sympathy with them . I told her, I did not think it was fair for anybody to be let out because they did not feel the same way she did. I told her, there were a lot of men with families being let out because they did not feel the same way she did. She told me to go ahead and find myself a job with a union with whom I was in sympathy with. Loew's testimony is that Goldes was abusive , and stated that she did not want to join the Union ; and when Loew asked why then she had come , Goldes replied that it was because Lucas had advised her to. According to Loew, she then told Goldes that perhaps Goldes would be "happier elsewhere " under the circumstances , "particularly since she was long over due, and from December 17th, on we were not accepting into the Union any person , and that she was not being treated differently than anybody else. She said that she was just as happy about the whole thing, and she left." Loew did not recall that Goldes offered to pay her dues. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It would seem rather pointless for Goldes to have made a trip to the union office ( two trips in fact, Loew being absent the first time ) merely for the purpose of venting spleen against the Union. It is much more likely that she went for the purpose of joining and that, as she testified , she offered to pay and the tender was refused . It is clear from the narrative of both Goldes and Loew that Loew at least suggested that Goldes would find conditions more compatible elsewhere. The General Counsel relies on alternative theories to support the allegation of discriminatory treatment of Goldes. First , the General Counsel contends that the contract was invalid . This contention has previously been found not to be sustained . The second ground is that the Union was unlawfully requiring the payment of back dues as a condition of membership in good standing and employment ; that membership was thus not "available" to Goldes within the meaning of proviso A of Section 8 (a) (3) ; that Goldes was consequently not required to make a tender of dues and initiation fees to prevent her discharge, and therefore her termination was illegal. (See Union Starch & Refining Co., 87 NLRB 779.) It has previously been found, however, that the Union did not require the payment of back dues as a condition of membership in good standing and employment within the meaning of the contract or the statute. Thirdly, it is contended that Goldes was denied membership, in violation of proviso B of Section 8 (a) (3), for reasons other than her failure to tender initiation fees and dues; these reasons being (1) her dislike for the Union manifested to Loew and (2) her failure to adhere to the Union during the schism. If the third contention is sustained the General Counsel has, in my opinion, made out a case of violation at least on the part of the Union. The evidence in support of that contention consists of (1) Goldes' account of her meeting with Loew, (2) an incident shortly before the representation election in which Union Officials Loew and Devlin solicited Goldes and others to join the Independent. Goldes' undenied testimony is that on this occasion she refused ; that this "annoyed" Loew and Devlin, who then "called us as a bunch of dummies that we didn 't want to join up with them " ; and (3) the fact that some noncontingent employees were permitted to join the Union after the deadline, whereas Goldes was not. If this were the only evidence bearing on Goldes ' discharge the General Coun- sel's conclusions might follow , but consideration of all the evidence leads me to conclude that the preponderance of the proof is the other way. In the first place , it seems unlikely that the Union would have discriminated against a relatively passive dissident like Goldes, while not discriminating against active ones , such as those in the Freiberg group . In the second place, Goldes' failure to make any effort to join the Union during either the 30 days permitted by the statute or the grace period allowed by the Union, deprives her testimony, even accepting it, of the significance which it would otherwise have. No ade- quate reason is ascribed by Goldes for her failure to comply in time with the union-shop requirement . Her testimony as to that was variously that she "didn't know" about the requirement ; that she saw no notices on the bulletin boards respecting it, or saw any of the circulars previously described ; that she received no letters ; that she had "heard" that she was required to join , but was merely "waiting to be told what to do" though making no effort to ascertain the facts ; that she "understood " that if the Union won the union-shop election that she would be required to join, but that she " took it for granted" she was still a member ; that though still considering herself a member she did not pay dues after January 1949 , or after the union -shop election because she "didn't know just what [she] owed or what procedure to go through" ; she "expected JAMES C. ELLIS 497 [the Union] to get in touch with [her] and tell [her] what was what" ; and that she "understood" that in order to remain a member of the Union she would "have to continue paying dues." In view of the wide publicity accorded the union-shop requirement and Goldes' own understanding of the situation as manifested by her testimony, I do not find it possible to say that adequate ground has been advanced for her failure to join the Union before the deadline. The Board has held that, unless excused as a matter of law, the duty is upon an employee having notice of a valid union- :shop requirement to make reasonable effort to comply. Ferro Stamping Co., 93 NLRB 1459; Chisholm-Ryder Co., 94 NLRB No. 76; Standard Brands, Inc., 97 NLRB 737. It is found that Goldes made no such effort here. Having failed to comply, Goldes' discharge was properly asked for by the Union. Having no reasonable cause to believe that the Union's request was illegally motivated, the Company was legally bound under the circumstances to discharge Goldes, Colgate-Palmolive-Peet Co., 338 U. S. 355; and it notified her that it was doing so. The Union was under no obligation at that stage of the proceedings to accept Goldes' tardy tender of dues. On neither Goldes' nor Loew's version, can Loew's statements to Goldes be in- terpreted, in this state of circumstances, as a declaration that if Goldes had been more amiable to the Union, her tender would have been accepted. That some noncontingent employees might have been permitted to join the Union after the December 3 deadline, does not establish the application of a different or discriminatory policy as to Goldes. She also was given the opportunity to join after December 3. The uncontested testimony of Loew is that no contingent employee required to join the Union by December 15, was permitted to join after December 17. In some cases tardy noncontingents were permitted to join within several days or a week after request for their removal and some noncontingents who pleaded financial difficulty were permitted to defer payment. There is no .evidence, however, that any such dispensation was accorded any employee after ,December 17. It is consequently Found the evidence does not establish unfair labor practices by either the Company or the Union in connection with the discharge of Goldes. [Recommendations omitted from publication in this volume.] JAMES C. ELLIS, SOLE OWNER , D/BMA JAMES C. ELLIS ( OIL PRODUC- TION) and INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL UNION No. 214, AFL. Case No. 9-CA-436. January 92, 1953 Decision and Order On July 22, 1952, Trial Examiner Henry J. Kent issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and the Respondent filed a supporting brief. 102 NLRB No. 52.