Victor Metal Products Corp. of Delaware

National Labor Relations Board - Board Decisions

Oct 30, 1953

106 N.L.R.B. 1361 (N.L.R.B. 1953)

VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1361
All broadcast engineers and technicians, exclusive of all office and clerical em-
ployees, announcers, watchmen, guards and all other employees, and supervisory
employees within the meaning of the National Labor Relations Act.
WE WILL NOT poll our employees concerning their desires or wishes relative to the
above-named or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor organiza-
tions or to join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
All of our employees are free to become or remain, or refrain from becoming or remaining,
members of the above-named or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act.
HOWARD W. DAVIS, d/b/a
THE WALMAC COMPANY,
Employer.
Dated ................ By.................. . ..........................................................................
(Representative ) (Title)
This notice roust remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE
and INTERNATIONAL ASSOCIATION OF MACHINISTS,
LOCAL LODGE 1853, AFL
GENERAL TEAMSTERS LOCAL NO. 137 , AFL and INTER-
NATIONAL ASSOCIATION OF MACHINISTS , LOCAL LODGE
1853 , AFL. Cases Nos. 20 - CA-809 and 20-CB-270. October
30, 1953
DECISION AND ORDER
On July 14, 1953, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent Employer had not engaged in unfair
labor practices and recommending that the complaint be dis-
missed as to this Respondent. The Trial Examiner also found
that the Respondent Union had engaged in and was engaging
in certain unfair labor practices and recommended that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Union filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings axe hereby affirmed. The Board
106 NLRB No. 249.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has considered the Intermediate Report , the exceptions, the
brief , and the entire record in the case, and hereby adopts
the Trial Examiner's findings , conclusions, and recommenda-
tions , with the following additions.'
THE REMEDY
Employee Bidema was unlawfully discharged at the Respond-
ent Union ' s request on January 23, 1953. She was reinstated
to her position on May 4, 1953 . The Trial Examiner recom-
mended that the Union compensate her for the loss in pay she
suffered from January 23 to May 4. The Union has excepted
to this recommendation , contending that, as its collective-
bargaining contract expired on March 15, 1953, and as it was
supplanted as bargaining representative by the Machinists 2
days later , its back-pay liability should terminate as of March
15, 1953.
After she was discharged , Bidema made repeated attempts
before March 15 to secure reinstatement . Her efforts were
blocked by the Union . On March 17, the Machinists won a Board-
conducted election to determine the bargaining representative
of the Employer's employees , and was certifiedas such repre-
sentative on March 25 , 1953. Later that month , Bidema and a
representative of the Machinists again requested her rein-
statement . The Employer replied that , as it had been charged
with having committed unfair labor practices in discharging
Bidema, it was concerned lest her reinstatement be taken as
an admission of guilt. After the Employer's attorney was
assured by the Board's Regional Director that the reinstate-
ment would not have the effect feared, Bidema was returned to
her job. At no time did the Union inform the Employer that it
was withdrawing its objections to the reinstatement of Bidema.
The purpose of the Board's remedial orders is not punitive,
but to restore the situation " as nearly as possible , to that which
would have obtained but for the illegal discrimination."' As a
result of the Respondent Union's unlawful conduct, Bidema
suffered a loss of wages from January 23 , 1953, to May 4,
1953. The Trial Examiner ' s recommended order merely
requires the Union to make her whole for this loss--in other
1 The Respondent Union has excepted to the finding of the Trial Examiner that it unlawfully
caused the Respondent Employer to discharge employee Bidema, upon the ground that the
Trial Examiner erroneously attributed to Union President Howell, as a matter of law, Busi-
ness Agent Davis' belief or knowledge of Bidema's activities on behalf of a rival union. How-
ever, the Trial Examiner inferred as a fact, with which finding we agree, that Davis had dis-
cussed Bidema's activities with Flowell before the latter decided to ask for Bidema 's discharge.
Thus , the Trial Examiner specifically discredited Howell's denial of such knowledge and con-
cluded that it was "highly improbable that in the discussion which occurred between Howell
and Davis with respect to Bidema 's discharge, no mention was made of these matters [Bidema's
activities]." We perceive no reason for upsetting the Trial Examiner ' s credibility finding
(Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F 2d 362 ( C A 3)), or the in-
ference which he drew from the testimony.
2 Phelps Dodge Corp . v. N L. R B., 313 U S. 177 , 194; F . W. Woolworth Co., 90 NLRB
289, 291.
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1363
words, to restore Bidema to the situation which would have
obtained but for the illegal discrimination practiced against
her.
It is true that the Union's collective-bargaining contract with
the Employer ended on March 15, 1953. But this did not alter
the fact that the Union had unlawfully caused the Employer to
discharge Bidema and that the loss of wages suffered by her
from March 15 to May 4 resulted from that unlawful act. The
Employer's delay in reinstating her reflected the not un-
reasonable reaction of a party involved in litigation. It must be
considered as the proximate result of the Union's unlawful
conduct. Moreover, the Union took no affirmative steps to
secure Bidema's reinstatement and thus help reduce the amount
of the loss being suffered by Bidema.3 As between the victim
of the unlawful conduct and the wrongdoer, we believe that the
loss suffered by the former should equitably be borne by the
latter. We believe that such a remedy is also necessary to
effectuate the policies of the Act. Accordingly, we shall direct
that the Respondent Union make Bidema whole for the entire
loss of earnings suffered by her from January 23, 1953, to
May 4, 1953, in the manner set outin the "Remedy" section of
the Intermediate Report.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent Union,
General Teamsters Local No. 137, AFL, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Victor Metal Products
Corporation of Delaware, Chico, California, its officers, agents,
successors, and assigns to discriminate against any employee
in violation of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing employees
of the aforesaid employer, its successors , or assigns in the
exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or
all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
3Compare Pen and Pencil Workers Union, Local 19593 (Parker Pen Company), 91 NLRB
883; Pmkerton's National Detective Agency, Inc., 90 NLRB 205, in which the Board provided
that a union's back-pay liability for causing an employer to discriminate against an employee
should terminate 5 days after the union should have notified the employer that it had no
objections to the reinstatement of such employee.
322615 0 - 54 - 87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole Geraldine Bidema for any loss of pay suf-
fered because of its unlawful action in requiring her discharge,
in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy."
(b) Post at its business office and meeting places , in Chico,
California , copies of the notice attached hereto and marked
"Appendix A."4 Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region , shall, after being
duly signed by an official representative of the Respondent
Union , be posted by it immediately after receipt thereof and
maintained by it for a period of at least 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
such notices are not altered , defaced, or covered by any other
material.
(c) Notify the Regional Director for the Twentieth Region
in writing within ten ( 10) days from the date of this Order of
the steps taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed , insofar as it alleges that the Respondent
Employer violated Section 8 (a) (3) and 8 (a) (1) of the Act.
Member Murdock, dissenting in part:
I agree with my colleagues in the disposition of the sub-
stantive portions of this case . I do not agree , however, with
their refusal to terminate the Union's liability for back pay for
Bidema when the contract expired and it ceased to be the
bargaining representative in March 1953. It is clear that after
that time Bidema's failure to get reinstatement to her job until
several weeks later on May 4 , 1953, was not because of any
objection on the part of the Union . It is no less clear that even
an express withdrawal by the Union of its earlier objections to
Bidema's employment would not have been of any avail. The
Employer ' s refusal to reinstate Bidema in March when she
and the new bargaining representative requested it was predi-
cated on a fear that to do so might be construed as an admission
of guilt of the unfair labor practice with which it was charged.
Under these circumstances I would not hold the Union liable
for back pay during this period.
41u the event that 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."
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1365
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon complaint and notice of hearing duly issued and served on the parties (Victor Metal
Products Corporation of Delaware, I International Association of Machinists, Local Lodge
1853, AFL, 2 and General Teamsters Local No 137, AFL 3) by the General Counsel of the
National Labor Relations Board, 4 a hearing before the undersigned Trial Examiner was held
at Chico, California, on June 11 and 12,1953. All parties were represented at the hearing where
they were afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs
and/or proposed findings of fact and conclusions of law There was oral argument at the close
of evidence and briefs have been filed by the General Counsel and the Union
The complaint alleged in substance that the Union violated Section 8 (b) (1) (A) and 8 (b) (2)
of the National Labor Relations Act, 61 Stat 136, herein called the Act, by causing the Em-
ployer discriminatorily to discharge Geraldine Bidema, its employee, and that the Employer
violated Section 8 (a) (1) and (3) of the Act by its discriminatory discharge of the said Bidema.
In their duly filed answers the Respondents, respectively, denied the commission of the alleged
unfair labor practices
Upon the entire record in the case and from my observation of the witnesses, I make the
following;
FINDINGS OF FACT
L THE BUSINESS OF THE EMPLOYER
The Employer is a Delaware corporation with plants located in various States including a
plant at Chico, California, its sole operation involved in this proceeding At its Chico plant,
the Employer is engaged in the production of aluminum metal tubes. During the calendar year
1952 the Employer purchased and received at its Chico plant materials from outside the State
of California exceeding $300,000 in value, and produced and handled goods at its Chico plant
exceeding $300,000 in value, for shipment to purchasers outside the State of California. The
Board's jurisdiction is conceded.
II. THE LABOR ORGANIZATIONS INVOLVED
The Teamsters and the Machinists, respectively, are labor organizations within the mean-
ing of the Act, affiliated with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
Preliminary Statement
During the period material to the issues herein there was in existence a bargaining agree-
ment between the Employer and the Union which included a union-shop clause. This clause
provided that only "members in good standing in the Union shall be retained in employment";
defined members in good standing as "employee members in the Union who tender the periodic
dues and initiation fees uniformly required as a condition of acquiring or retaining member-
ship", and required discharge upon written notice from the Union "of failure on the part of
any individual to complete membership in the Union or of failure to continue payment of
dues to the Union. . " The General Counsel concedes the validity of the contract, but con-
tends that the phrasing of the union-security clause is ambiguous.
By letter dated January 22, 1953, the Union requested the Employer to discharge Geraldine
Bidema The letter stated, inter alia, "Geraldine Bidema has consistently been in arrears in
payment of her dues She is not amember in good standing of our local union as of this date."
Pursuant to this request the Employer discharged Bidema on January 23. In causing this dis-
I Called herein the Employer or the Respondent Company
2 Called herein the Machinists.
SCalled herein the Union or the Teamsters
4Called herein the Board.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge the Union is alleged to have violated Section 8 (b) (1) (A) and ( 2) of the Act, and in ef-
fectuating the discharge the Employer is alleged to have violated Section 8 ( a) (1) and (3) of
the Act.
With Respect to the Employer
Bidema was the fourth employee to be discharged under the union - shop clause of the Union's
contract with the Employer . In each instance the Employer acted promptly upon receipt of the
Union's written request . The form of the Union's notice was substantially the same in all
cases except that the language in Bidema ' s notice, quoted above , did not appear in prior
notices 5 I see nothing in this additional language which could reasonably be construed as
putting the Employer on notice that Bidema ' s discharge was sought for reasons other than
her failure to pay her union dues. We are asked to find, however , that the Employer had
reasonable grounds for believing that her discharge was sought for other reasons We are
asked to infer this from the timing of the request and statements made by Bidema and others
at the time of, and following , her discharge '
As to the timing On January 13, 1953, a representation petition was filed by the Machinists
with respect to the unit of employees then represented by the Union, and on January 14 the
Employer was advised of the Machinists ' claims of representation and the filing of the peti-
tion On January 17, the Employer was served with notice of hearing on the Machinists'
petition , the said hearing to occur on January 23 Because of these communications the Em-
ployer was aware at the time it discharged Bidema that the Machinists were attempting to
oust the Union as bargaining representative The discharge actually occurred on the day the
representation hearing was held There is, however , no evidence that the Employer was op-
posed to the Machinists or preferred the Union over the Machinists , or vice versa . Bidema's
activities on behalf of the Machinists , by her own admissions , consisted of a single conversa-
tion with three other employees during a noon recess at the plant and attendance at a single
meeting of the Machinists There is no evidence that the Employer had knowledge of these
activities and no evidence from which such an inference might reasonably be drawn. I do not
find in the sole fact that the discharge request came on the eve of the representation hearing
grounds for inferring that the Employer thereby had reason to believe that the request was
based on reasons other than her failure to maintain membership in good standing in the Union.
The Union was not deprived of the fruits of its contract by the fact that a hearing on a repre-
sentation petition filed by a rival union was about to be held.
As to the statements by Bidema and others made to the Employer at the time of her dis-
charge Bidema testified that when she was handed her termination notice by Robert L.
Griffen, the Employer ' s acting manager , she told him that she did not understand the Union's
discharge request because she was not that far behind in her dues ; that she could get her union
book and show him that she "wasn't that far behind "; to which he replied, " Well, we will have
to take the Teamsters ' word for it " Charles H. Jones, then her fiance , now her husband, who
had been discharged at the Union ' s request in November 1952, testified that he saw Bidema
the afternoon of her discharge , and after looking at her dues book called Griffen by telephone,
suggested that he should " check into" the matter of the Union's discharge demand, and told
Griffen that he had Bidema's dues book and that it showed her "not far enough behind to be
suspended ." Griffen replied that the Employer was bound by its contract with the Union and
could do nothing further in the matter of Bidema ' s discharge Griffen testified concerning his
conversation with Bidema that she said merely, "I had no idea I was that far in arrears." On
or about February 3, a representative of the Machinists , accompanied by Bidema and Jones,
saw Griffen and requested Bidema's reinstatement . He produced Bidema's dues book and
showed Griffen that she had paid 1 month's dues on January 26. Griffen then called the
Union's office and was informed by the Union ' s business agent, William S. Davis, that Bidema
had paid 1 month on her back dues but "was still not a member in good standing and could not
be reinstated "
I credit Griffen ' s version of the conversation he had with Bidema on the occasion of the
latter ' s discharge , but crediting in full the General Counsel's witnesses , I still would be
5 The form used in prior notices was:
This is to notify you that, under Article One, Section Four, Paragraph Two of the Agree-
ment between your company and Gen. Teamsters Local #137 - I am officially requesting
you to remove from the employment
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1 367
unable to find that their statements to Griffen were of such character as to give rise in the
Employer's mind of a reasonable belief that the Union had requested her discharge for reasons
other than her failure to pay dues uniformly required to maintain good-standing membership.
That she was delinquent in her dues was not denied by anyone That she was still delinquent
after paying a month's dues on January 26 was not denied. Jones told Griffen that she was not
sufficiently in arrears to have her membership in the Union "suspended." This was some-
thing quite different from asserting that she had maintained her membership "in good stand-
ing." The Board has consistently held that the word "membership" as used in the union-shop
provisos to Section 8 (a) (3) and as normally employed by parties in union-shop contracts
means good-standing membership Ferro Stamping and Manufacturing Co., 93 NLRB 1459,
Firestone Tire and Rubber Co , 93 NLRB 981. 6 And in none of the conversations with the Em-
ployer relating to her discharge was it suggested that her discharge had been required be-
cause of her activities on behalf of the Machinists or for any reason other than her failure
to pay her dues. Under such circumstances the Employer was under no duty to launch an
investigation into the internal affairs of the Union to determine whether in requiring Bidema's
discharge the Union was following uniform and lawful practices. Bidema's dues-delinquency
having been affirmed by herself and everyone else who communicated with the Employer with
respect to her discharge, and no other reasons having been suggested as a cause of the dis-
charge request, it is clear that the Employer in effectuating her discharge acted in entire
good faith, under the terms of its contract with the Union, and in the reasonable belief that the
Union had requested her discharge for the sole reason that she had failed to maintain good-
standing membership.
With Respect to the Union
Bidema joined the Union in May 1950. There were monthly dues payable on or before the
first of each calendar month. Section 2 of Article XV of the Union's bylaws provided
Any member going more than ninety (90) days in arrears in dues shall stand suspended
from the Union. Such member may only be returned to good standing upon the payment of
a reinstatement fee or as the Executive Board may direct. (Emphasis supplied.)
Bidema paid her first dues on May 20, 1950, and with the exception of February 1951, she at
no time paid her dues on or before the first of the month for which they were due. She was
sent suspension notices on the following dates: August 18, 1951; January 18, 1952, February
18, 1952; March 18, 1952, September 18, 1952; October 18, 1952, November 18, 1952; Decem-
ber 18, 1952, January 18, 1953; February 18, 1953 These notices bore the following text
The official records show you are three months in arrears in dues. According to Article
10, Section 6 (C) of the Constitution you shall be suspended unless you adjust yourself in
good standing by _ (Emphasis supplied )
In each instance the date inserted was the tenth of the fourth month in which dues payments
were in arrears . Article 10, Section 6 (C) provided:
All members paying dues to local unions must pay them on or before the first day of the
current month, in advance Any member who shall be three months in arrears in the
payment of dues, fines, assessments, or other charges, at the end of the third month,
shall automatically stand suspended and shall not be entitled to any rights or privileges
as a member of the local union or International Union. Local unions may provide suspen-
sion or expulsion, or lesser periods of arrearages
On each occasion that Bidema received a suspension notice she paid 1 month's dues on or
before the effective date of the notice, thus avoiding actual suspension from membership.
While the Union's constitution and bylaws provide for automatic suspension when dues pay-
6 The union-shop clause herein in defining membership in good standing adopts language
from the proviso . , . "if he has reasonable grounds for believing that membership was denied
or terminated for reasons other than the failure of the employee to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring or retaining member-
ship , .." Section 8 (a) (3) (Emphasis supplied.)
1 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments are 3 months in arrears, the suspension notice itself clearly provided a period of grace
in which the member in arrears could escape suspension, and admittedly this was the uni-
form practice of the Union The suspension notice, however, like the Union's constitution and
bylaws, treats the delinquent dues-payer as having already lost the status of good-standing
membership, because it states that suspension will follow unless the delinquent member
adjusts himself in good standing by the given date. I am therefore unable to agree with the
General Counsel's argument in his brief that until the member is actually suspended he
maintains his membership in good standing
On December 15, 1952, Bidema paid dues for the month of October. These were the last
dues she paid prior to her discharge She was therefore more than 3 months in arrears at
the time the Union requested her discharge Her next dues payment was made on January
26, following her discharge, and was for but a single month This payment stopped her sus-
pension but, as I have construed the Union's constitution and bylaws, did not restore her to
good-standing status She was not, therefore, in good standing at the time of the Union's
request and the discharge which followed it
It has been observed that the definition of good-standing membership appearing in the
union-security clause under which her discharge was effectuated, adopts language from the
provisos to Section 8 (a) (3) of the Act. It is obvious therefrom that the parties intended that
the union-shop clause should conform to the statute As the Board has construed the language
of the provisos, outright expulsion or suspension from membership does not have to precede
the discharge demand to make it lawful, if in fact the person whose discharge is sought has
lost good-standing membership through failure to pay uniformly required dues. Suspension of
good-standing membership is "termination" of "membership" within the meaning of the
provisos and, I think, within the meaning of the union-security clause herein. Electric Auto-
Lite Company, 92 NLRB 1073, 1078, footnote 11 As stated by the Board, the purpose of the
union-shop provisos was to eliminate "free riders " Charles A. Krause Milling Co., 97
NLRB 536, 542. If the parties, in the opening clause of the union-security provision, which
states that only "members in good standing in the Union shall be retained in employment,"
had not intended that "good standing" should qualify total suspension from membership, such
language would have been superfluous and meaningless. The definition of good-standing
membership which follows is, I think, merely precautionary language which would avoid
running afoul of the statute, and as this language from the provisos has been construed by
the Board, it neither adds to nor subtracts from the remainder of the union-security provi-
sion which clearly expresses the intent of the parties.
In agreement with counsel for the Respondent Union I have thus far found that at the time of
the discharge demand and the discharge which followed it, Bidema had lost her good-standing
membership status, and since the same dues were required of her as were required of all
other members, she had lost it through failure to pay uniformly prescribed dues Under a
literal reading of Section 8 (b) (2) of the Act? , it might be argued that this firmly establishes
that there was no violation by the Respondent Union, inasmuch as Bidema, through her failure
to pay uniformly prescribed dues, terminated her own good-standing membership and thereby
rendered herself vulnerable to discharge under an admittedly valid union-shop contract, but
it is the General Counsel's further position that the Union did not request her discharge
because of her loss of good-standing membership but because of the Union's belief that she
was active on behalf of theMachinists. Tosubstantiate this latter position the General Counsel
relies on the timing of the discharge request, evidence purporting to show that in similar
cases of dues-delinquencies the Union did not require the delinquent member's discharge;
and evidence of the Union's knowledge and belief that Bidema was instrumental in bringing
the Machinists into the plant These contentions will be discussed in inverse order.
Bidema signed an authorization card for the Machinists on December 15, 1952, and, as
previously said, her activities for the Machinists consisted of attendance at one meeting and
a single conversation which she had with three fellow-employees during a lunch recess at the
plant There is no question, however, that the Union suspected Jones, her fiance, who had been
discharged at the Union's request in November 1952, of soliciting the Machinists to organize
the plant, and Bidema's engagement to Jones was made public by a posting on a bulletin board
in the plant about a week prior to her discharge From her engagement to Jones the Union
7 The pertinent provisions of Section 8 (b)(2):" ... to cause .. an employer to discriminate
against an employee . . . to whom membership has been denied or terminated on some ground
other than his failure to tender the periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership ...."
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1369
may have inferred that she was equally active with him in espousing the Machinists ' cause,
but whatever its source the Union' s belief that Bidema was active for the Machinists is
clearly established in the following excerpts from the examination by Union' s counsel of the
Union's business agent , Davis:
Q. When did you become aware of the fact that Miss Bidema had been active on behalf
of the Machinists ?
A. The early parr of January I heard talk out at the plant.
Q. And Miss Bidema was singled out , that is, her name was mentioned?
A. Yes, it was singled out.
Q. Were there any other names mentioned?
A. Yes.
Q. Can you recall what names ?
A. Charley Jones was very much brought into it
Q. Anybody besides Charley Jones and Miss Bidema 9
A. I don 't recall any other names
We also have Dorothy Mack ' s undisputed and credited testimony that Davis told her he thought
Jones "and his girl friend " had something to do with the Machinists seeking to organize the
plant , and the mutually corroborative testimony of Robert Neiter and Dora C. Smith that at a
meeting of the Union on March 17, 1953, in response to a question from the floor, Davis said
that a couple of " disgruntled soreheads ," a girl and her boy friend, were responsible for the
Machinists' organizational drive and that both of them had been fired . Mack was unable to
state whether her conversation with Davis occurred before or after Bidema 's discharge, and
both Neiter and Smith were uncertain as to some details of the March 17 meeting. Davis and
Herbert W. Howell, the Union ' s president who presided over the March 17 meeting , testified
concerning this meeting and neither recalled a statement having been made of the character
ascribed 'to Davis by Neater and Smith, but I find that such a statement was made . In view of
the foregoing I am convinced that the Union believed Bidema to be active on behalf of the
Machinists . If, in requiring her discharge , it was motivated by that belief , it is of little
significance that Bidema ' s actual activities on behalf of the rival union were inconsequential.
With respect to the Union's normal practices in cases of members who have lost good-
standing status because of dues delinquencies , it appears that in all cases prior to Bidema's
actual suspension from membership preceded the discharge request . Jones' discharge was
requested in November 1952, after his formal suspension from the Union on September 10,
1952, and upon his failure to pay any dues from the date of his initiation into the Union on May
9, 1952, until his discharge, except for the month of May. Marvin Schuette, hired on August
29, 1952, paid no dues and was discharged at the Union ' s request on October 16, 1952. Charles
Fugett, hired on June 21, 1951, paid his first dues October 16, 1951, was formally suspended
pursuant to suspension notice on April 10, 1952, and was discharged , on the Union' s request,
April 15, 1952. From the foregoing it is seen that of the three employees other than Bidema
discharged under the union - security clause, Schuette never actually completed his member-
ship in the Union and both Jones and Fugett were formally suspended from membership before
their discharge was required . It is immaterial that the Union under its union- shop contract
might lawfully have required the discharge of a delinquent member immediately upon that
member ' s loss of good standing , if in fact its uniform practice was to wait until after actual
suspension had occurred.
It further appears that the Union had noumform practice of requiring discharge in all cases
of suspended members or where its members had lost good -standing status because of dues
delinquency Vernon L. Smith received suspension notices in April, June, and July, 1951, was
formally suspended in August 1951, but no discharge request was made , and in November he
was reinstated to union membership. Elsie Schwartzkopf was suspended for dues delinquency
in October 1952, reinstated in November , paid dues for December 1952, but paid no dues
thereafter and was again suspended , pursuant to notice , April 10, 1953. The Union at no time
requested her discharge . Hilary A. Dorff was 3 months or more in arrears in dues payments
for the months of July, August, September , October, November, and December , 1952; on Decem-
ber 30 he paid his October dues , on February 6, 1953, his dues for November , and on February
28, 1953 , his dues for December , he was suspended pursuant to formal notice on April 10,
1953, but at no time was his discharge requested.
Davis testified that the Union made allowances in"hardship" cases and took into considera-
tion such matters as the steady employment of the delinquent member , and the member's
137 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personal problems of health and finance. I have no doubt such matters would normally enter
into the Union's considerations but I am not convinced that the Union's decision to invoke the
union-shop clause with respect to Bidema was made in the context of such considerations. In
the three prior cases of discharge under the union-security clause, Davis, business agent of
the union local, made the decision, but inBidema's case it was Howell, the Union's president,
who made the decision. He testified that on a visit to the Chico office of the union local, he
was informed by the office girl that Bidema was to be married and thinking that this probably
meant that she would be quitting her employment, he looked at her file preliminary to sending
her word to get a withdrawal card, and upon finding that she was 3 months in arrears im-
mediately instructed Davis to write a letter requesting her discharge. The letter was forth-
with written. Obviously, no investigation was made to determine the particular facts in her
case which might, or might not, as the case may be, explain her dues delinquency Bidema had
steady employment but there is no showing that it was any steadier than Dorff's, or that the
latter was more of a "hardship" case, and, as has been seen, it was the Union's normal
practice not to invoke the union-security clause until after actual suspension had followed
the service of a suspension notice, and not to invoke it then except in cases of extreme
delinquencies.
It is true, as the Board said in North American Refractories Company, 100 NLRB 1151,
that a prior liberal application of a union-security clause does not mean that a union is
required to continue thereafter to "extend the same leniency to all delinquent members as
a fixed obligation of law"; nor was the Union estopped from resort to its union-shop contract
by the fact that a hearing was about to be held on the Machinists' petition for representation;
but, if I have read the decisions correctly, a union may not lawfully invoke its union-security
clause for reasons other than a failure to pay uniformly prescribed dues; in other words, a
labor organization may no more use dues delinquency as a pretext for requiring the discharge
of a member, eventhough that member has rendered himself vulnerable to discharge by failure
to pay uniformly prescribed dues, than an employer may lawfully discharge an employee on
pretext of inefficiency, even though such inefficiency exists, where the moving cause of the
discharge is not inefficiency but the employee's union activities. While the Union was not
bound, "as a fixed obligation of law," to continue to extend the same leniency to delinquent
members as it had in the past, its variance from a previously established practice of greater
leniency and, more important, its contemporaneous application, in the case of Dorff, of
leniency as great as any it had practiced in the past, while denying the same leniency to
Bidema, is persuasive evidence of discriminatory motive. Similarly, while it had the same
right of recourse to its union-security contract after the advent of the Machinists as before,
the fact that it exercised this right with respect to Bidema on the eve of the hearing upon the
Machinists' petition, whereas it had for a substantial period prior thereto waived such action,
is evidence of discriminatory intent on a par with evidence which the Board has found per-
suasive in numerous discharge cases involving employers, where the employer has tolerated
certain lapses in discipline or workmanship in an employee for a period of substantial dura-
tion and then suddenly discharges the employee, purportedly for these same lapses, upon
learning of the latter's union affiliation. I do not understand that the Board in the North
American Refractories Company case, cited supra, intended to apply a different standard in
weighing evidence of discriminatory intent in cases involving labor organizations than it
has uniformly applied in the past in cases where only employers were involved. These factors,
in conjunction with what I find to be a clear showing that the Union believed that Bidema in
concert with her fiance Jones was instrumental in initiating the Machinists' organizational
drive, convince me that except for this belief the Union would not have sought her discharge
unless and until she had failed to heed the suspension notice, pending at the time of her dis-
charge, by restoring herself to good-standing membership on or before February 10. As has
been seen she did in fact avoid actual suspension by payment of 1 month's dues on January
26. I find that in causing her discharge the Union violated Section 8 (b) (1) (A) and (2) of the
Act. 8
8In reaching these conclusions I have considered and rejected Howell's testimony that at
the time he directed Bidema's discharge he had received no reports that Bidema was active
for the Machinists or was to be married to Jones. He admitted that he had heard in December
that Jones had told employees that he was going to bring the Machinists into the plant, and he
also admitted that it was on information given him at the Chico office that Bidema was to be
married, that he sought out her record Under all the circumstances disclosed herein, I
believe it to be highly improbable that in the discussion which occurred between Howell and
Davis with respect to Bidema's discharge, no mention was made of these matters.
VICTOR METAL PRODUCTS CORPORATION OF DELAWARE 1371
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring in connection
with the operations of the Employer, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent Union unlawfully caused the discharge of Geraldine
Bidema on January 23, 1953. Following the termination of the Union's contract with the Em-
ployer and its loss of representative status, Bidema was reinstated by the Employer to the
same or equivalent position held at the time of her discharge , without loss of seniority or
any other rights and privileges Therefore the only remedial action required with respect to
her is compensation for earnings lost as a result of the Union 's action in causing her dis-
charge Accordingly, it will be recommended that the Union make Bidema whole for any loss
of pay she may have suffered by reason of the Union's unlawful act in causing her discharge,
by payment to her of a sumof money equal to that which she normally would have earned from
January 23, 1953, the date of thedischarge, to the date of her reinstatement by the Respondent
Employer, less her net earnings , if any, during such period. Crossett Lumber Co., 8 NLRB
440, 497-98. The back pay shall be computed in the manner established by the Board in F.W.
Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1 Victor Metal Products Corporation of Delaware is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the Act.
2. General Teamsters Local No. 137, AFL, the Respondent Union herein , is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. By causing Victor Metal Products Corporation of Delaware to discriminate against
Geraldine Bidema in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By restraining and coercing employees of Victor Metal Products Corporation of Dela-
ware in the exercise of their rights under Section 7 of the Act, the Respondent Union has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
6. Victor Metal Products Corporation of Delaware has not engaged in any of the unfair
labor practices alleged in the complaint.
[Recommendations omitted from publication]
APPENDIX A
NOTICE
TO ALL MEMBERS OF GENERAL TEAMSTERS
LOCAL NO. 137, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify you that:
WE WILL NOT cause or attempt to cause Victor Metal Products Corporation of Dela-
ware , or any other employer, to discriminate against any employee in violation of Section
8 (a) (3) of the Act
WE WILL NOT in any other manner restrain or coerce any employee in the exercise
of his rights to self-organization , to form , join, or assist labor organizations , to bargain
collectively through representatives of their own choosing , to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection , and to re-
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frain from any or all of such activities, 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.
WE WILL make Geraldine Bidema whole for any loss of earnings sustained by reason
by the discrimination against her.
GENERAL TEAMSTERS LOCAL No. 137, AFL,
Labor Organization.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof and must not be altered,
defaced , or covered by any other material.
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF
AMERICA, LOCAL 914 and UNITED RUBBER, CORK, LINO-
LEUM & PLASTIC WORKERS OF AMERICA, INTERNA-
TIONAL UNION, CIO. Case No. 13-CB-206. October 30, 1953
DECISION AND ORDER
On August 5, 1953, Trial Examiner Henry S. Sahm issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in certain unfair labor
practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter
the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
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 Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner. t
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 the Respond-
ent, United Electrical, Radio & Machine Workers of America,
Local 914, its officers, representatives, agents, successors,
and assigns, shall:
'In so concluding , we find it unnecessary to adopt the statements by the Trial Examiner
that , in effect , a union is responsible for all activities by pickets in furtherance of a strike
as the record shows other grounds for holding the Union liable for the misconduct of the
pickets and strikers on which we rely . With the exception of Wolff and Gourley , the persons
who participated in conduct violative of the Act were agents of the Union. Wolff and Gourley,
however , engaged in proscribed conduct only in the presence of Baker, union vice president,
who not only failed to repudiate or prevent such action , but, in fact , participated in the
incident- -albeit short of actually striking Beizen.
106 NLRB No. 250.