Union Starch & Refining Co.

In the Matter of UNION STARCII & REFINING COMPANY and JOHN RALPH, AN INDIVIDUAL In the Matter of GRAIN PROCESSORS' INDEPENDENT UNION, LOCAL NO. 1 1 and JOHN RALPH, AN INDIVIDUAL Cases Nos . 14-CA- 35 and 14-CB-13 SUPPLEMENTAL DECISION AND ORDER December 16, 1949 On July 21, 1949, Trial Examiner Horace A. Ruckel issued his Intermediate Report finding that the Respondents had not engaged in the unf air labor practices alleged in the complaints 2 and recommend- ing that the complaints be dismissed in their entirety, as set forth in the copy of the Intermediate Report attached hereto. The General Counsel and the International Chemical Workers Union, AFL,3 filed exceptions to the Intermediate Report; the General Counsel and the Respondent Company filed briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed 4 The Board has considered the Intermediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings of fact, conclusions,' and recommenda- i At the hearing the Respondent Union stated that it had changed its name and affiliation and is now American Federation of Grain Millers. Local No. 153, AFL. IThe complaints alleged violations of Section 8 (a) (1), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act, as amended. 8 The Chemical workers were permitted to intervene, on the basis of the union member- ship of the dischargees involved herein. See 82 NLRB 495. 4 For the reasons stated in our earlier order remanding this case (82 NLRB 495), we find no merit in the Respondent Company's contention that Ralph's testimony was inadmissible because not under conventional oath. The contention that such testimony is inadmissible because the witness would not risk criminal liability for material falsehood is also without merit. See 18 U. S. C. A. § 1001; United States v. Marzani, 168 F. 2d 133 (C. A. 1), aff' d 69 S . Ct. 299. For the reasons stated in the Intermediate Report, we agree with the Trial Examiner's conclusion that the temporary demotion . of employees Thomas and Chestnut did not violate either Section 8 (a) (3) or 8 (b) (2) of the amended Act. 87 NLRB No. 137. 779 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions only to the limited extent that they are consistent with this Decision and Order. The major issue in this case arises from the discharges of employees .John Ralph, Nelly Ralph, and Mary Rawlings. The facts pertinent to these discharges may be briefly summarized . The Respondent Union threatened a work stoppage if, pursuant to a valid union-shop contract,6 the Respondent Company failed to discharge certain em- ployees for "failure to pay dues and initiation fees." Knowing that several of the individuals named in the request had been supporters of a rival union prior to the representation election , the Respondent Company undertook to investigate the facts and circumstances sur- rounding the Respondent Union 's demands , in order to ascertain whether or not membership was available to these employees on the :same terms and conditions generally applicable to all other non- members. In the course of this investigation , the Respondent Company learned that all of the employees whose discharge was requested had tendered the amount of the dues and initiation fees uniformly required to the Respondent Union 's business agent, who had refused the tender, say- ing that payment could not be accepted until after they had become members. The business agent told them that, in order to qualify for membership , any nonmember must (1 ) attend the next regular union meeting, at which applicants would be voted upon and accepted, (2) take the obligation to the Union, and ( 3) then pay the initiation fee and prepay 2 months' dues . After the Company had completed this inquiry, the Respondent Union repeated its request for the discharge .of certain employees, for "non-membership " in the Respondent Union, and listed the terms it uniformly imposed upon the acquisition of After securing proper authorization in a UA election , the Respondent Union and the Respondent Company executed an agreement containing the following provision : Article V. Union Security. All present employees in the bargaining unit must become members of the Union within thirty ( 30) days after the execution of this agreement [ April 2, 1948 ] and must maintain membership in the Union during the term of this agreement as a condition of employment. New employees in the bargaining unit must become members of the Union within (30) days after the date of hire and must remain members of the Union during the term of this agreement as a condition of employment. Any employee in the bargaining unit who fails to maintain membership in the Union 'because of non-payment of initiation fees or dues shall be summarily discharged by the Company upon receipt of written notice and demand by the Union ; provided, however, that nothing in this agreement shall be construed so as to place any obligation upon the Company to discriminate against any employee for non -membership in the Union (1) if the Company has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally appli- cable to other employees , or (2) if the Company 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 initiation fees uniformly required as a con- dition of acquiring or retaining membership. UNION STARCH & REFINING COMPANY 781 membership. Thereupon the Respondent Company gave the desig- nated employees approximately 20 hours in which to fill out a questionnaire concerning their willingness to comply with the three conditions which the Union imposed. All but the three employees named above indicated their willingness to comply. These three did not and were then discharged. Each of these employees had stated to the Union's business representative the grounds for their unwilling- ness to comply with other of the conditions imposed.7 In the case of the two Ralphs, these grounds were religious in character and were matters of moral scruple. On these facts the issue before us is whether an employee who ten- ders to a union holding a valid union-shop contract an amount equal to the initiation fees and accrued clues thereby brings himself within. the protection from discharge contained in the provisos of Section 8 (a) (3) and in Section 8 (b) (2) of the amended Act.'. 7 Our findings of fact are consistent with those made by the Trial Examiner , except in the following details :. 1. The Trial Examiner found that on April 28 , Bloodworth, the Respondent Union's business representative, had told the nonmembers that they must execute applications for membership. We find that he told all nonmmnnhers present at the April 28 meeting that only he could make out the applications . Furthermore , he proceeded to fill out appli- cations for all nonmember employees , both present and absent, except the Ralphs. 2. The Respondent Union made two requests for the discharge of the complainants. The 'Trial Examiner does not note the difference in the reasons asserted in each of the two requests . On May 7, the Union requested the discharge of employees named in the notice as having "failed to pay initiation fees and dues." On May 12 , however, the Union requested discharges for "non -membership." We also note that the Trial Examiner omitted the following facts which we deem relevant : 1. The Ralphs had religious scruples against taking any "obligation ." ( See 82 NLRB 495.) When Bloodworth told the Ralphs that they would, along with the others, have to take an obligation to the union to qualify for membership , Ralph told him he could not, and would not , take an oath . However , John Ralph, who was also his wife's spokesman, repeatedly told Bloodworth that he was willing to pay his dues and become a member and that he was willing to attend union meetings. 2. Bloodworth told Rawlings that the Union had voted favorably upon her application, in her absence , at the meeting held on May 28. 3. On receiving the Company's questionnaire. Ralph, in the presence of both company and union representatives, protested the lack of space on which to give reasons for any answer . He further stated that he would need more time in order to consult a lawyer. His request was denied. 4. When she received the Company 's questionnaire , Rawlings told Plant Manager Curry that she was willing to pay dues, take the oath , etc., "if favorable to the American Fed- eration ," of which she was already a member , and that she needed more time to get permis- sion for a change in her membership to avoid possible penalties for dual unionism. 5. The parties stipulated that the Company was threatened with a work stoppage unless it fired all employees who were not members of the Respondent Union. 6. The Union' s notice of May 12 stated as the "conditions for membership " the three items covered by the Company's subsequent questionnaire, quoted on page 800 of the Inter- mediate Report . The notice stated that these conditions had been uniformly imposed upon all applicants for membership "since the date on which the Independent had been certified as the bargaining representative [ January 6 , 1948 , in Case No. 14-R-1730]." 8 In our view, the Respondent Company misstated the issue , when before the Trial Examiner it asserted that the primary question for decision is whether one who does nothing more than tender a sum of money equivalent to the initiation fee and dues of a labor organization thereby acquires "membership " in a labor organization , within the 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (3) exempts from the Act's ban on discrimination, because of membership or nonmembership in a labor organization, discharges made pursuant to an authorized union-shop contract which may require "membership" in the contracting labor organization as a "condition of employment." This exemption, however,, is circum- scribed by the limitations contained in the following proviso : Provided further, That no employer shall justify any discrimi- nation against an employee for nonmembership in a labor or- ganization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) 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 mem- bership. Section 8 (b) (2) makes it an unfair labor practice for a labor or- ganization or its agents to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization 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. The Trial Examiner found that the Respondent Company was j us- t.ified, under the duly-authorized union-shop contract, in honoring the Respondent Union's demand for the discharge of three nonmembers; although the Respondent Company knew that these nonmembers had tendered "initiation fees and dues" to the Respondent Union with- out being accorded membership in the Union. He found that pro- viso (A) of Section 8 (a) (3) was not violated, on the ground that before making the discharges, the Company had ascertained that membership was available to any employee on the same terms and con- ditions applicable to any other nonmember and applied to all new members admitted since January 6, 1948, when the Union was certi- fied as bargaining representative. The Trial Examiner found that meaning of that term as it is used in the proviso of Section 8 (a) (3) of the Act. The provisos of Section 8 (a) (3) are specifically limited to protecting nonmembers of the con- tracting union, and cannot be converted into statements of the conditions which entitle an employee to membership rather than those which entitle him, as a nonmember, to keep his job. Accordingly, we regard as inapposite those cases, cited by the Trial Examiner on page 802 of the Intermediate Report, which discuss the attributes of membership in a labor organization. UNION STARCH & REFINING COMPANY 783 proviso (B) of Section 8 (a) (3) was not relevant in,this case despite the fact that the Respondent Union had, as the Company knew, re- fused Ito accept the initiation fees and dues tendered by the dischargees, for the following reasons : .. . each of them failed and refused to do anything toward be- coming a member other than to offer to pay a sum of money equal to the initiation fee and dues which members were currently pay- ing. Membership in the Respondent Union was never denied them, but, on the contrary, the three employees were assured that they would be accepted as members if they complied with the terms and conditions of membership generally applicable to all members in the bargaining unit, that is if they (1) attended the meeting at which they were to be voted upon (2) took the obliga- tion of membership, and (3) paid the initiation fees and dues. [Emphasis supplied.] Having found no violation of 8 (a) (3), the Trial Examiner found no violation of 8 (b) (2) in the Union's demands for the discharge of nonmembers. We agree with the Trial Examiner's conclusion insofar as he found that proviso (A) of Section 8 (a) (3) was not violated.9 Unlike the Trial Examiner, however, we find the discharges violative of proviso (B) of'Section 8 (a) (3) and of Section 8 (b) (2). As we read the statutory language, the provisos to Section 8 (a) (3) spell out two separate and distinct limitations on the use of the type of union-security agreements permitted by the Act. Proviso (A) pro- tects from discharge for nonmembership in the contracting union any employee to whom membership is not available for some discrimina- tory reason; i. e., any reason which is not generally applicable. Pro- viso (B) protects employees who have tendered the requisite amount of dues and initiation fees and been denied membership for any other reason, even though that reason be nondiscriminatory. At first blush the provisos appear to involve duplication. Indeed, the Respondent Company argues that such a reading of the statute, when applied to employees who have never been members of the con- tracting union, renders meaningless proviso (A), contending that any discriminatory reason for denying an employee membership would always be a reason other than his failure to pay dues or initiation fees. More careful analysis, however, readily discloses that provisos 9 As the record establishes that the Respondent Company had no reason to believe that membership.. was not available to the dischargees on the same terms and conditions gen- erally applicable to (1) other nonmembers and to (2) recently admitted members , we need not decide whether the terms must be those "generally applicable to other members" of the union or "other members" of the collective bargaining unit. See fr. Conf. R. No. 510 on H. it. 3020, 80th Cong., lst Sess. (1947), p. 41. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (A) and (B) have ample independent scope, and the elementary prin- ciple of statutory construction which favors giving some meaning to each part of a statute 10 is thereby satisfied 11 Thus, for example, it is clear that proviso (B) requires a tender of dues and fees, whereas proviso (A) protects any employee discriminatorily excluded from membership whether or not such tender is made. We therefore read proviso (B) as extending protection to any em- ployee who tenders periodic dues and initiation fees without being accorded membership. If the union imposes any other, qualifications and conditions for membership with which he is unwilling to comply, such an employee may not be entitled to membership, but he is entitled to keep his job. Throughout the amendment to the Act, Congress evinced a strong concern for protecting the individual employee in a right to refrain from union activity 12 and to keep his job even in It union shop.13 Congress carefully limited the sphere of permissible union security, and even in that limited sphere accorded the union no 11 See. Helmick v. Hellman, 276 U. S. 233. " We believe it is the Trial Examiner's construction of the provisos in question which. if anything, violates this canon of construction. Although the Trial Examiner purported to give explicit and separate meanings to each proviso, he found that each was the cure for the same possible union abuse. Compare his discussion of provision (A) (p. 803) with his discussion of (B) (p. 803). Moreover, he found that proviso (B) was satisfied when the three employees were assured that they would be accepted as members if they complied with the terms and conditions of membership generally applicable" ; that is, when (A) was satisfied. The Trial Examiner, in effect, asks us to read proviso (B) with the following interpolation : or . . .. for believing that membership was denied an applicant willing to comply with any terms and conditions of. membership generally applicable to all members of the bargaining unit . . . for reasons other, than the failure of the employee to tender the periodic dues and initiation fees and to comply with any generally applicable terms and conditions of memnbersh.ip. Such a reading makes proviso (B) meaningless as applied to nonmembers seeking initial membership. This criticism is not answered by asserting, as does the Respondent Com- pany, that Congress intended proviso (A) to apply to the acquisition of membership and (B) to apply solely to expulsion from membership. Proviso (B) clearly applies, as the Trial Examiner recognized, to obtaining membership. "Denied" and "terminated" are used in the proviso as alternatives. The Respondent Company's contention that "denied" means "denied continued membership" perverts the normal meaning of the word. "Denied," as generally used, means "2. to refuse (one who asks) 3. to refuse to grant: to withhold ; to refuse to gratify or yield to." Webster's New International Dictionary (2d ed. 1947). Furthermore, the term "initiation fees" could only apply to an employee secur- ing initial membership. 12 Section 7. This section protects employees in their negative right not to join or assist labor organizations, except to the extent that that section is modified by the provisions of Section 8 (a) (3). Section 8 (3) is therefore an exception to Section 7. As Section 7 ex- presses the legislative policy, the exceptions made in Section (a) (3) must, under general rules of statutory construction, be strictly construed, to remove from the purview of Sec- tion 7 only those "subjects expressly . . . freed from the operation of the statute." 2 Sutherland, Statutory Construction (3rd ed.) § 4933 ; 59 C. J. 1089. 13 H. Rept. No. 510 on H. R. 3020, p. 41 : "The committee did not desire to limit the labor organization with respect to either its selection of membership or expulsion there- from. But the committee did wish to protect the employee in his job if unreasonably expelled or denied membership. The tests provided by the amendment are based upon facts readily ascertainable and do not require the employer to inquire into the internal affairs of the union." See also S. Rept. No. 105 on S. 1126, p. 20. 0 UNION STARCH & REFINING COMPANY 785, power to effect the discharge of nonmembers except to protect itself against "free rides." 14 We cannot say, as did the Trial Examiner, that by refusing to com- ply with the Union's requests the employees had demonstrated that they "were entirely unwilling to become members" and therefore that. "membership" had not been "denied" to them. The employees were' willing to comply with the only term or condition for membership, which we think can, under the provisos, legally be enforced by dis- charge-the tender of the periodic dues and the initiation fees uni- formly required. Thus in the case of Rawlings, membership was. "denied" even after her application was "favorably voted upon," be- cause the Union imposed conditions of membership over and above the tender of dues and initiation fees. And in the case of the two Ralphs, the Union, contrary to its general practice, did not even fill out applications for them, although the union agent advised them. that only he could fill out applications. We cannot assume that Con- gress, by using the term "denied," intended to permit unions to fore- stall applications for membership and thereby circumvent the policy expressed in proviso (B). Nor does the legislative history which Respondent Company urges. upon us call for a different result. Quite the contrary. Although the legislative history does establish that Congress wanted to protect from. discharge an employee "unreasonably" denied membership,15 Congress specified what it regarded as reasonable -the failure of . the employee, to tender the dues and initiation fees.1 The statements of Senator Taft, set forth in footnote,17 establish that he thought the bill in its 11 "It seems to us that these amendments remedy the most serious abuse of compulsory' union membership and yet give employers and unions who feel that such agreements pro- mote stability by eliminating `free riders' the right to continue such arrangements." S. Rept. No. 105 on S. 1126, p. 7; compare Senate Minority Report, pp. 9-10 ; Senator Taft,. during debates on May 9, 1947, 93 Cong. Rec. 5088. 15 See Senator Taft's statement, 93 Cong. Iles. 4317 ; S. Rept. No. 105 on S. 1126, p. 7- 16 "The tests provided by the amendment are based upon facts readily ascertainable and do not require the employer to inquire into the internal affairs of the union." S. Rept No. 105 on S. 1126, p. 20. 17 On the Senate floor on May 9, 1947, Senator Taft said : "Mr. President, while I think of it, I should like to say that the rule adopted by the committee is substantially the rule now in effect in Canada. Apparently by a decision of the justices of the Supreme Court of Canada in an arbitration case, the present rule in Canada is that there can be a closed shop- or union shop, and the union does not have to admit an employee who applied for member- ship, but the employee must, nevertheless pay dues, even though he does not join the union. "If he pays the dues without joining the union, he has the right to be employed. That,, in effect, is it kind of tax, if you please, for union support, if the union is the recognized. bargaining agent for all the men, but there is no constitutional way by which we can do, that in the United States." a a a a a a a "I may say that the argument made for the union shop and against abolishing the- closed shop, is that if there is not it closed shop those not in the union will get a free ride, that the union does the work, gets the wages raised, then the man who does not pay dues. rides along freely without any expense to himself. Under the Canadian rule, and under- 11 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD final form successfully and constitutionally protected not only the union from "free riders" but also protected those employees willing to pay for their ride. We are unable to agree with Respondent Com- pany's contention that to require the tender of dues is tantamount to imposing a compulsory check-off. The statute plainly contemplates that, under a valid union-shop contract, non-union employees may be required at least to offer to bear a fair share of the maintenance of the union 15 Plainly a plan under which employees pay their dues directly to the union instead of through the employer is unlike the compulsory check-off proscribed in Section 203 of the Act. Finally, we note that the Trial Examiner also sought to buttress his conclusion by pointing out that a construction such as we-place upon the provisos to Section 8 (a) (3) "would tend to destroy all union security," because employees could "choose to remain outside the union" and thereby lessen the union's effectiveness in representing the employees. The very argument the Trial Examiner advances was unsuccessfully urged upon the Congress which enacted the proviso 19 That decision is binding upon us, whether or not we think it wise, practical, or fair^0 Moreover, viewing the situation realistically, we believe that the Trial Examiner has overstated the case. It appears highly improb- able that employees would be encouraged by our interpretation of the statute merely to tender dues and refrain from actual participation in the union. Asa general rule, rather than refraining, employees are likely to insist upon participating in the affairs of a union to whose treasury they are required to contribute. Indeed without such an attitude on the part of the employees involved, a union is hardly likely the rule of the committee , we pretty well take care of that argument . There is not much argument left," ( Emphasis supplied .) 93 Cong. Rec. 5088. Senator Taft's reference to a Canadian decision is to the arbitration between Ford Motor Company of Canada (Windsor, Ont.), and the UAW-CIO, decided January 29, 1946, 1 Labor Arbitration Reports 439, 17 LRRM 2782. 18 As Senator Taft said , "In other words, what we do, in effect, is to say that no one can get a free ride in such a shop. That meets one of the arguments for the union shop. The employee has to pay the union dues." ( Emphasis supplied.) 93 Cong. Rec. 3953, April 23, 1947. The Joint Committee on Labor-Management Relations, so understood the section. Its Report No. 986, pt. 3, 80th Cong., 2d Sess. ( 1948 ), states (p. 52) : "When Congress abolished the closed shop and permitted the union shop with the safeguard that it might not be used to deny employment to anyone whose lack of membership was occasioned by any- thing other than refusal to pay a reasonable initiation fee and regular membership dues, it was attempting to eliminate the abuses of compulsory membership while still permitting labor organizations to enjoy a form of union security . . . . In permitting a limited form of compulsory membership , Congress recognized that the `free rider' argument had some validity." 19 See H. Minority Rep. No. 215 on H. R. 3020, 80th Cong., 1st Sess.. ( 1947) pp. 80-81 S. Minority Rep. No . 105, Pt. 2 on S. 1126, 80th Cong., 1st Sess. ( 1947 ) pp. 8-9; Senator Pepper on the floor of the Senate , April 29 , 1947, 93 Cong. Rec..4316-4318. 21 See National Maritime Union, 78 NLRB 971, 979 , where we said : "It is our duty to administer the law as written, not to pass upon the wisdom of its provisions." UNION STARCH & REFINING COMPANY 787 to obtain the vote necessary to authorize the execution of the union- security agreement. We conclude 21 that the Respondent Company discharged the Ralphs and Rawlings, on May 13, 1948, because they were nonmembers of the Respondent Union. As the Respondent Company knew that the dischargees had tendered the periodic dues and the initiation fees uniformly required as a condition of membership, without being ac- corded membership, we find that the Respondent Company discrimi- nated in regard to hire or tenure of employment to encourage mem- bership in the Respondent Union in violation of Section 8 (a) (3) of the amended Act, and thereby interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (a) (1). We find that the Respondent Union demanded the discharge of employees to whom it had not granted membership on grounds other than their failure to tender the periodic dues and the initiation fees uniformly required. As the Respondent Company violated Section 8 (a) (3) in making the discharges which the Respondent Union de- manded, we find that the Respondent Union caused the employer to discriminate against these employees, and thereby violated Section 8 (b) (2).22 We further find that, by causing the Respondent Com- pany discriminatorily to discharge such employees, through the illegal application of its contract, the Respondent Union restrained and coerced employees in the exercise of the rights guaranteed by Section 7, and thereby also violated Section 8 (b) (1) (A) of the amended Act. 13 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 described in Section I of the Intermediate Report, have a close, intimate, and substantial relation to commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 21 Members Houston and Reynolds dissent from these conclusions, and would hold that the discharges of the Ralphs and Rawlings did not violate the Act, and were justified under the valid union-security agreement. Their reasons forJ^reaching that conclusion will be set forth in a dissenting opinion which will be filed later. 7 22 See Clara-Val Packing Conepany, 87 NLRB 703. `We see no significant distinction between the enforcement of an illegal contract, as was present in that case, and the illegal application of a valid contract. 23 Clara-Val Packing Company, supra. It should be noted that this decision does not impair the right of the Respondent Union to prescribe its own rules with respect to the acquisition of membership , a union privilege protected by the proviso to Section 8 (b) (1) (A). Under our decision, a union may deny membership to an employee upon any ground it wishes, but the only ground on which it can have a nonmember discharged under a union- security clause is the employee's refusal to tender initiation fees and dues. 877359-50-vol. 8 7 51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 each of the em- ployees named in paragraph 3 of Appendix A immediate and full reinstatement to his -former or a substantially equivalent position'24 without prejudice to his seniority or other rights and privileges. As we have found that both the Respondent Employer and the Respondent Union are responsible for the discrimination suffered by such employees, we shall order thelii jointly and severally 25 to make such employees whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to the amount that he or she normally would have earned as wages from May 13, 1948, the date of the Respondent Com- pany's discrimination, to the date of the Intermediate Report, and from the date of this Decision and Order, to the date of the offer of reinstatement as provided hereafter, less his or her, net earnings 26 during such periods.27 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 : 1. Union Starch & Refining Company, Granite City, Illinois, and its agents, successors, and assigns, shall : a. Cease and desist from : - , (1) Encouraging membership in American Federation of Grain Millers, Local No. 153, AFL, or in any other labor organization of its employees, by discriminating in any manner in regard to their hire, tenure, or any term or condition of their employment; (2) In any like or related manner interfering, restraining, or coerc- ing its employees in their right to refrain from exercising 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 24 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible , but if such position is no longer in existence , then to a substantially equivalent position." See The Chase National Bank of the City of New York, Sinn Juan, Puerto Rico, Branch, 65 NLRB 827. 25 H. H. Newman., 85 NLRB 725. 26 See Crossett Lumber Co., 8 NLRB 440. r In accordance with our practice , the period from the date of the Intermediate Report to the date of the Order herein is excluded in computing the amount of back pay to which these employees are entitled , as the Trial Examiner recommended dismissing the complaints. UNION STARCH & REFINING COMPANY 789 labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Offer to the employees named in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions; (2) Post immediately at its offices and place of business in Granite City, Illinois, copies of the notice attached hereto as Appendix A 28 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by Respond- ent's representative, be posted by Respondent immediately upon re-. ceipt thereof and maintained by it for sixty (60) consecutive days in. conspicuous places including all places where notices to employees, are customarily posted. Reasonable steps shall be taken by Respond-. ent to insure that said notices are not altered, defaced, or covered by any other material; (3) Notify the Regional Director for the Fourteenth Region in, writing, within twenty (20) days from the date of receipt of this Order what steps Respondent has taken to comply herewith. 2. American Federation of Grain Millers, Local No. 153, AFL, Granite . City, Illinois, its officers, representatives, and agents, shall : a. Cease and desist from : (1) Requiring, instructing, or inducing Union Starch Refining Company, Granite City, Illinois, its agents, successors, or assigns, to discharge employees who have tendered initiation fees and the dues uniformly required for the acquisition of membership because they are not members of Respondent Union, or in any other manner causing or attempting to cause that Company, its officers, agents, successors, or assigns, to discriminate against its employees in violation'of Section 8 (a) (3) of the Act; (2) Restraining or coercing employees of Union Starch & Refining Company, Granite City, Illinois, its successors or assigns, in the exer- cise of their right to refrain from any or all of the concerted activi- ties guaranteed to them by Section 7, 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 by Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : °s In the event that this Order is enforced by a decree of it Court of Appeals, there shall he inserted before the words, "A DECISION AND ORDER" the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Post in conspicious places in its business office in Granite City, Illinois, where notices to members are customarily posted, copies of the notice attached hereto as Appendix B.29 Copies of said notice, to be furnished by the- Regional Director for the Fourteenth Region, shall, after being duly signed by official representatives of Local No. 153, be posted by the Local immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days there- after. Reasonable steps shall be taken by this Respondent to insure that said notices are not altered, defaced, or covered by any other material; (2) Mail to the Regional Director for the Fourteenth Region signed copies of the notice attached hereto as Appendix B, for posting, the Employer willing, at the office and place of business of the Employer, in places where Appendix A is posted. Copies of said notice, to be furnished by the Regional Director of the Fourteenth Region, shall, after being signed as provided in paragraph 2 (b) (1) of this Order, be forthwith returned to the Regional Director for such posting; (3) Notify the Regional Director for the Fourteenth Region, in. writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. '3. Union Starch & Refining Company, Granite City, Illinois, its agents, successors, and assigns, and American Federation of Grain Millers, Local No. 153, AFL, shall jointly and severally 'make whole John Ralph, Nelly Ralph, and Mary Rawlings, for any loss of pay each of them may have suffered because of the discrimination against them, in the manner described in the remedy section above. IT IS FURTHER ORDERED that the complaints, insofar as they allege violations of the amended Act by the temporary demotions of Thomas and Chestnut, be, and they hereby are, dismissed. MEMBERS HOUSTON and REYNOLDS, dissenting ; 30 In this case the Company and the Union entered into a collective bargaining agreement containing a union-shop provision which, in all respects, met the requirements imposed by. Section 8 (a) (3) of the Act as amended. Three employees who were not then members of the Union tendered to the Union's representative the dues and initiation fees uniformly required of members, but refused, for one reason or another, to comply with one or the other of two additional require- "9 In the event that .this Order is enforced by a decree of a United States Court of Ap- peals, there shall be inserted before the words "A DECISION AND ORDER," the words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 30 The decision of the majority (Chairman Herzog, Members Murdock and Gray) was issued on December 19, 1949. 87 NLRB 779. Members Houston and Reynolds agree that the temporary demotion of employees Thomas and Chestnut did not violate either Section 8 (a) (3) or S (b) (2) of the amended Act. [Dissenting opinion dated February 8, 1950.1 UNION STARCH & REFINING COMPANY 791 ments which the Union imposed as conditions for acquiring member- ship: (1) that they attend the next regular meeting of the Union, at which applicants would be voted 011,31 and (2) that they take an oath of allegiance to the Union.32 In these circumstances, the Union re- garded the three employees as having failed to acquire membership in the Union and requested that they be discharged pursuant to the con- tract. The Company, after full investigation of the circumstances, complied with this request. Our colleagues have held that the tender of dues and fees was sufficient, without more, to bring the discharged employees within the protection from discharge under union-shop agreements contained in the provisos to Section 8 (a) (3) and 8 (b) (2) of the amended Act; and that the discharges therefore violated these sections of the Act. They have held that even under a valid union-security agreement, so far as retention of employment is concerned, the union can ask nothing more of employees who under the contract are obliged to join the union, than that they pay the normal dues and fees. Even reasonable procedural requirements for acquiring membership, which a union- as in this case-may impose, can be ignored ; the employee, having offered to pay the dues and fees, has done all that can legally be asked of him. We cannot agree with this conclusion. In our opinion, the result which the majority has reached is wholly unwarranted by the language of the Act and goes far beyond what Congress intended when, in Section 8 (a) (3), it limited the power of unions to obtain and admin- ister union-security agreements. For our colleagues, the second proviso to Section 8 (a) (3).,33 in particular subsection (B), leaves room for no other interpretation than that the tender of dues and fees is enough to protect an employee from discharge even in the face of a valid contract requiring member- ship in a labor organization as a condition of employment. This analysis, in our opinion, reads this proviso out of the context of the 11 The Union 's constitution requires that candidates for membership be proposed by three members in good standing and be accepted by a majority vote of those present at the union meeting. c12 This oath states : "I . pledge my honor to faithfully observe the laws of this Union ; to comply with all rules and regulations for the government thereof, not to divulge or make public any of the private proceedings of this Union ; to faithfully perform all the duties assigned me to the best of my ability, and skill; to so conduct myself at all times as not to bring reproach upon my Union and at all times to bear true allegiance to the Grain Processors Independent Union." 33 "Provided further, That no employer shall justify any discrimination against an em- ployee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership wit, not available to the employee on the same terms and conditions generally applicable to other members, or (B) 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 membership." 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remainder of the section and disregards the basic objectives which Congress sought to, achieve. In the first proviso to Section 8 (a) (3), Congress specifically sanctioned contracts which require, under speci- fied conditions, that employees obtain membership in labor organiza- tions as a condition of employment. It is true that the second proviso greatly limits the extent to which such contracts can be employed to deprive employees of their jobs. If membership in the union is sought, the union is not free to deny it and thereby secure an employee's dis- charge except under those conditions specified in the second proviso: But the fact remains, as the language of both provisos clearly indi- cates, that if a valid l.uuon-shop contract has been executed, employees must seek membership in the union in order to keep their jobs; and a union cannot be said to have denied membership to employees who have not sought membership. Moreover, at least as that concept is commonly understood, a desire to become a member of an organization imports much more than mere willingness to pay the organization's dues or fees, and certainly encompasses a willingness to comply with reasonable formalities in the process of joining. But if all our colleagues had decided was that, on the facts of this case, the three discharged.employees had been denied membership after having demonstrated a willingness to become members of the union, in the full sense of that term, i, e. a willingness to do more than pay the dues and fees, then we might do no more than take issue With the inference they draw from the evidence before us.34 But their decision goes far beyond the facts of this particular case. It postulates, as a rule of law, that within the meaning of the provisos to Section 8 (a) (3) employees seek "membership" when they do no more than tender the dues and fees, and are "denied"' membership if those clues and fees are not accepted. Thus, even. in the situation in which employees openly admitted that they wished to have nothing . to do with the union, were unwilling to participate in any of its ac- tivities or bear any allegiance to it, and were willing only to pay clues and fees for the right to work under the union-shop contract, the refusal of the union to accept these employees on those terms Would, under the majority decision, be a denial of membership within the meaning of the provisos to Section 8 (a) (3). It is from this par- ticular aspect of our colleagues' decision that we most vigorously dissent. 3i We are persuaded, on the record as a whole, that in fact the three employees were unwilling to do more than pay dues . In reaching this conclusion , we are impressed with their failure to attend the union meeting at which their names were to be presented. If the Ralphs, for example, were really willing to do everything asked of them by the union except take an oath, it would appear reasonable for them to have cone to the meeting, explained their religious scruples, and asked for a waiver of the requirement in their case. UNION STARCH & REFINING COMPANY 793 Congress clearly recognized that unions operating under union- shop agreements usually impose certain "terms and conditions" for acquiring membership. In fact, in proviso (A) of Section 8 (a) (3), Congress required that these "terms and conditions"' must be non- discriminatory. Our colleagues, however, say, in substance, that in the very next sentence, in proviso (B), Congress prescribed that such unions may impose no "terms or conditions" on acquiring member- ship-whether or not they are discriminatory-other than the tender of dues or fees. This is a forced construction containing the most obvious inconsistencies, and one we believe wholly unnecessary. For us it seems far more reasonable to construe the provisos, insofar as they apply to employees who must join the union, as follows: Proviso (A)'permits unions to prescribe "terms and conditions" for acquiring membership in the union so lpng as they are nondiscriminatory, i. e. so long as all applicants are required to comply with them. Proviso (B) requires that once these nondiscriininato-ry "terms and conditions" have been met, by the employee seeking membership in the union, lie cannot be denied membership for any other reason than failure to tender the dues and fees. In other words, under proviso (B), an employee has not been "denied" membership if he is unwilling to comply with the nondiscriminatory "terms or conditions" permitted nuclei, proviso (A). He is protected against discharge, under proviso (A), if the "terms and conditions" imposed are discriminatory. He is protected, under proviso (B), if, despite his willingness to comply with nondiscriminatory "terms and conditions" and his tender of the required clues and fees, he is not accepted as a member. So viewed, on the facts of the instant case, we would conclude that the discharged employees, having failed to comply with the union's nondiscrimina- tory "terms and conditions" for acquiring membership, were not "denied" membership within the meaning of proviso (B) and this discharge was protected under the valid union-shop contract. The reasonableness of our construction of the Act, as against that adopted by the majority, must be tested against the legislative history insofar as it discloses the broad objectives Congress sought to achieve in the amendments to Section 8 (3) of the Wagner Act. As we read the pertinent legislative history, one fact stands out: Congress carefully considered the possibility of outlawing all forms of union-security agreements, and despite vigorous efforts made to do just that,` decided to permit the union shop with certain limita- as See, for example , the debate on the amendment to the Senate Bill offered by Senators Ball and Byrd, which would have made all forms of union-security agreements illegal. 93 Cong. Ree. 5087 ff., May 9, 1947. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. But those limitations had a very specific purpose. That pur- pose was expressed by Senator Taft in these terms : 36 .. . we have to have an open shop or an open union. The committee decreed an open union. I believe that will permit the continuation of existing relationships, and will not violently tear apart a great many long-existing relationships and make trouble' in the labor movement; and yet at the same time it will meet the abuses which exist. The limitations contained in provisos (A) and (B) of Section 8 (a) (3) were thus designed to assure that a union holding a union-shop contract shall be an "open" union. From the examples to which repeated references are made in the debates, it becomes abundantly clear that by an "open" union Congress meant a union which does not deny membership on some arbitrary, or unreasonable basis.37 Union shops are permitted, but the union cannot deny membership to em- ployees who seek it, and who are willing to comply with reasonable nondiscriminatory terms and conditions, for some arbitrary or dis- criminatory reason. The construction we place upon the provisos to Section 8 (a) (3) would fully accomplish what Congress sought to achieve. We find no evidence of an intent to distort union-shop agree- ments into mere devices by which unions can insure that all employees pay for the right to work. Yet that is the clear effect of the majority decision. We, no less than our colleagues, are fully aware of our obligation to administer the law as written and to give effect to the congressional will, however we may regard the wisdom of the provision in ques- tion. But we see no warrant in the Act or in its legislative history for prohibiting unions who are parties to valid union-shop agree- ments from insisting upon such reasonable procedures of those who. are required under the contract to become members as were present in this case. We would dismiss the complaints in their entirety. 36 93 Cong. Rec. 5088 , May 9, 1947. 37 The Senate Report summed it up thus : The committee did not desire to limit the labor organization with respect to either its selection of membership or expulsion there- from. But the committee did wish to protect the employee in his job if unreasonably ex- pelled or denied membership ." Senate Report No . 105 on S. 1128, 80th Cong. 1st Sess., p. 20. [Emphasis added.] UNION STARCH & REFINING COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 795 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 : AVE WILL NOT encourage membership in AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL No. 153, A.FL, or in any other labor organization of our employees, by discriminating in any manner in regard to their hire, tenure of employment, or any terms or conditions of employment. EVE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization ^,s a condition of employment, as authorized by Section 8 (a) (3) of the Act. WVE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as the result of the discrimination against them : John Ralph Nelly Ralph Mary Rawlings All our employees are free to become or remain members of the above-named union 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 amended Act. We will not discrim- inate in regard to hire or tenure of employment of any employee who has tendered initiation fees and dues to the union holding such a contract because of nonmembership in such labor organization. UNION STARCH & REFINING COMPANY, Employer. By ------------------------------------------ (Representative ) (Title) Dated ------------ -------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To all members of American Federation of Grain Millers, Local No. 153, AFL, and to all employees of Union Starch & Refining Com- pany, Granite City, Illinois Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : W`TE WILL NOT require, dnstruct, or induce UNION STARCH & RE- FINING COMPANY, Granite City, Illinois, its agents, successors, or assigns to discharge employees who have tendered initiation fees .and the dues uniformly required for the acquisition of member- ship because they are not members of Local No. 153, or in any other manner cause or attempt to cause that Company, its offi- cers, agents, successors or assigns, otherwise to discriminate against its employees in violation of Section 8 (a) (3) of the Act. . WWTE WILL NOT restrain or coerce employees of UNION STARCH 8 REFINING COMPANY, Granite City, Illinois, in the exercise of their rights to refrain from any or all of the concerted activities guaranteed to them by Section 7, 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 au- thorized by Section 8 (a) (3) of the Act. WE WILL make the following employees whole for any loss of pay they may have suffered because of the discrimination against them : John Ralph Nelly Ralph Mary Rawlings AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL No. 153, AFL, By ---------------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. UNION STARCH & REFINING COMPANY 797 INTERMEDIATE REPORT Mr. Harry G. Carlson, for the Board. Mr. George P. Ryan, of Indianapolis, Ind., for the Respondent Company. Mr. Victor B. Harris, of St. Louis, Mo., for the Respondent Union. Mr. Louis S. Belkin, of Akron, Ohio, for the Chemical Workers. Mr. Stanley R. Schuehat, of St. Louis, Mo., for John Ralph, et al. STATEMENT OF THE CASE Upon charges filed on October 11, 1948, by John Ralph, an individual, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued complaints dated the same day and date against the Union Starch & Refining Company, herein called the Respondent Company, and Grain Processors Independent Union, Local No. 1,. herein called the Respondent Union, alleging that the Respondent Company had engaged in, and was engaging in, unfair labor practices affecting commerce within the mean- ing of Section 8 (a) (1) and (3), and the Respondent Union within the meaning of Section 8 (b) (1) (A) and (2), and both within the meaning of Section 2 (6) and (7), of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaints accompanied by notices of hearing were duly served upon the Respondents and Ralph. With respect to the unfair labor practices, the complaints alleged in substance that (1) the Respondent Union, on or about May 13, 1.948, refused to accept the initiation fees and dues tendered it by John Ralph, Nelly Ralph, and Mary Rawlings, and others, and thereafter demanded of the Respondent Company that it discharge them for nonmembership in the Respondent Union upon grounds other than their failure to tender the periodic dues and initiation fee uniformly required as a condition of acquiring or retaining union membership, and (2) on or about July 26, 1948, caused the Respondent Company to denote Gilbert Thomas and T. R. Chestnut because they refused to assist the Respondent Union and supported and assisted International Chemical Workers Union, Local 106, herein called the Chemical Workers, prior to the time that the Respondent Union was certified as the bargaining representative of the Respondent Company's employees. As to the Respondent Company, the complaint alleged (1) that it acquiesced in the demand of the Respondent Union to discharge John Ralph, Nelly Ralph, and Mary Rawlings, and (2) demoted Gilbert Thomas and T. R. Chestnut. On the same day and date that the Regional Director issued the complaints aforesaid, he issued an order consolidating the cases and setting them down for hearing, pursuant to Section 203.33 (b) of the Board's Rules and Regulations. On October 29 and November 8, 1945, respectively, the Respondent Company and the Respondent Union filed separate answers admitting certain allegations of complaint with respect to the nature of the Respondent Company's business, but denying that either of them had engaged in, or was engaging in, any unfair labor practices. Pursuant to notice, a hearing was held on November 30 and December 1, 1948, at Granite City, Missouri, before the undersigned Trial Examiner, duly appointed by the Chief Trial Examiner. The General Counsel, the Respondents, and John Ralph were represented by counsel and participated in the hearing. Pull oppor- ' This term includes particularly counsel appearing on behalf of the General Counsel. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was afforded q11 parties. On December 1, the undersigned, upon motion by the Respondents. dismissed the complaints on the ground that Ralph did not swear to the charges and that the charges did not contain a declaration that its contents were true and correct to the best of his knowledge and belief as provided for in Section 203.11 of the Board's Rules and Regulations. On March 30, 1.949, the Board issued in order overruling the Trial Examiner and remanding the case for the taking of further evidence and for the preparation of in Intermediate Report. Pursuant to notice, a hearing on the remand was held on May 1.0 and 11, 1949, at Granite City, Missouri. At the conclusion of the hearing, the Trial ExIaminer granted a motion by the General Counsel to conform the pleadings to the proof in formal matters, and reserved ruling upon motions by the Respondents to dismiss the complaints. These motions are disposed of by the recommendations hereinafter made. The parties argued orally before the Trial Examiner, and were granted leave to file briefs and/or proposed findings of fact and conclusions of law with him by May 26. Subsequently, this time was extended by the Chief Trial Examiner to June 25. The General Counsel and the Respondents filed hriofs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the follolving: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Uiflon Starch & RefiniDg Company is an Indiana corporation, licensed, to do business in the State of Illinois, with its principal office and place of business in Columbus, Indiana. It operates a plant at Granite City, Illinois, which is the only plant involved in these proceedings, where it is engaged in the process- ing of corn food products. During the year ending July 1, 1948, Respondent Company purchased raw materials consisting chiefly of corn and processing chemicals in excess of $1,000,000 in value, of which approximately 50 percent was shipped to the Granite City plant from points outside the State of Illinois. During the same period, the Respondent Company sold finished products in exces!4 of $1,000,000 in value, of which approximately 75 percent was shipped from the Granite City plant to points outside the State of Illinois. The Respond- ents concede that the RespoDdent Company is engaged in commerce within the .u',eaning of the Act. II. THE 0110ANIZATIONS INVOLVED Grain Processors' Independent Union, Local No. 1, and International Chemical Workers Union, Local 106, are labor organizations admitting employees of the Respondent Company to membership. The latter is affiliated with the Nmerican Federation of Labor. The former, during the events berein related, was tinaffilidted.2 A. The discluvrges of John Ralph, Nelty Ralph, avd Mary Rawlings The Respondent Company's employees at the Granite City plant were first represented from and after 1937 by Federal Labor Union -No. 18850. In 1944, 2 Subsequent to the issuance of the complaints. Grain Processors' Independent Union, T,ocal No. 1. became affiliated with the American Federation of Labor and is now American Fedenition of Grain Millers Local No. 152, with the American Federation of Labor. UNION STARCH & REFINING COMPANY -799 that organization affiliated itself with the International Chemical Workers Union AFL, and became Local 106. On December 7, 1947, the Respondent Union, Local No. 1, was selected in a Board election by the employees as their bargaining representative, and on February 11, 1948, a majority of the employees authorized it to include a union-shop provision in a contract with the Respondent Company. On April 2 the Respondent Company and the Respondent Union executed an agreement containing a union-security provision requiring as a condition of employment membership in the Respondent Union within thirty (30) days from the date of the contract, or from date of employment. On April 5 the Respondent Company posted notices on its bulletin boards in the plant advising the employees of the agreement and setting forth Article II thereof pertaining to membership in the Respondent Union as a condition of employment. On April 28, John Ralph, his wife Nelly Ralph, Mary Rawlings, and others called at the offices of the Respondent Union and talked with G. B. Bloodworth, its business representative. Bloodworth told them that in order to join the Respondent Union it was necessary (a) to pay the initiation fee of $10 and 2 months' dues of $2 a month then owing, (b) sign an application for membership,. and (c) attend the next meeting of the Union on May 6 to take the formal. obligation of membership. He assured them all that there was no question about their being voted into the Union, and advised them that if for any reason they were not voted in they would still retain their jobs with the Respondent Company. The two Ralphs refused to sign application cards, but Rawlings authorized Bloodworth to make out one in her behalf. All of them tendered $14, the proper amount of the initiation fee and dues then accrued, but Bloodworth refused to accept it until they had been voted on and had taken the obligation of membership. Neither of the Ralphs nor Rawlings attended the meeting on May 6, the follow- ing one on May 20, or any other meeting of the Union, or at any other time contacted the Union and offered to comply with the requirements as stated by Bloodworth. On May 7 Respondent Union, by its financial secretary, demanded of the Respondent Company that it discharge the two Ralphs and Rawlings, as well as Gilbert Thomas, T. R. Chestnut, Clyde McKinnon, Henry Dickey, Charles Veach, Marshall Daugherty, and Grover Bolt, other employees who had not joined the Union. Following the Respondent Union's demand, the Respondent Company by Herman Parr, its personnel director, Plant Manager Curry, and Executive Vice-President Pulse, undertook an investigation to determine whether or not membership in the Respondent Union had been made available to the employees in question on the same terms and conditions generally applicable to the other employees. For this purpose, Parr conducted individual interviews with each of the employees in question on May 7, 8, and 10. At these interviews, Parr showed to each employee the demand of Respondent Union that they be discharged, and asked them to make a signed statement regarding the matter. They submitted statements saying, in substance, that they had gone to the Inde- pendent office on April 28 and had offered to pay an amount of money equivalent to the amount required as initiation fees and dues, but were. told that the money could not be accepted until they had been voted upon and taken the obligation of membership. On May 11, Curry conducted similar individual interviews with the employees involved. During these interviews Rawlings stated, according to her testimony, that she told Curry that she had offered her initiation fees and dues once to the Respondent Union, and that because 800, DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had been refused she was not going to offer them again, stating also that She was paid up in the Chemical Workers until December 1948. The employees, other than the Ralphs and Rawlings, named in the complaint indicated their willingness to comply with the requirements set forth by Bloodworth. On May 12, the Respondent Company received another letter from the Respondent Union stating that it required all applicants for membership to attend a regular union meeting at which their application for membership was to be voted upon, unless excused because of work schedule or sickness, stating that this condition had been imposed uniformly upon all applicants for member- ship who had applied since the date on which the Respondent Union had been certified as bargaining agent. On May 12, the employees in question were again called to the office where Pulse, Curry, and Parr were again present, together with a representative of the Respondent Union. Pulse advised the employees that the Respondent Company was completing its investigation, and handed each of them a written questionnaire which he asked them to fill out and sign. The questionnaire was as follows : (1) Are you willing to tender the periodic dues and the initiation fees uniformly required by Grain Processors Union, Local No. 1 as a condition of acquiring membership? ---------- ---------- YES NO (2) Are you willing to take the obligation as a member of Grain Proc- essors Union, Local No. 1 which is required by the Union of all applications for membership? ---------- ---------- YES NO (3) Are you willing to meet the requirement imposed by Grain Processors Union, Local No. 1 upon all applicants for membership that such applicants attend the regular union meeting at which their application for member- ship is voted upon, unless excused therefrom because of work schedule or sickness? ---------- ---------- YES NO Pulse advised the employees to sign the questionnaire "yes" and they were given until S o'clock the following morning to return it. All of the employees returned the questionnaire answering its three propositions "yes," excepting John Ralph, Nelly Ralph, and Mary Rawlings, and subsequently were admitted into the Respondent Union. The Ralphs and Rawlings were discharged the The issue The above findings of fact are based upon evidence standing substantially uncontradicted in the record, and present the single issue whether the Ralphs' and Rawlings' tender to the Respondent Union of an amount equal to the initia- tion fees and accrued dues without doing more, was sufficient to bring them within the protection from discharge under the provisos of Section 8 (a) (3.) and 8 (b) (2) of the Act.' 3 The pertinent parts thereof read as follows : Section 8 (a) (3) : "Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if lie has reasonable grounds for believing that such member- ship was not available to the employee on the same terms and conditions generally appli- cable to other members, or (B) 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 UNION STARCH & REFINING COMPANY 801 The General Counsel takes the position that no condition of membership can be imposed upon employees by a contracting union except the payment of periodic dues and initiation fees uniformly required of members, that the tender by the Ralphs and Rawlings of the amount of the initiation fee and dues for 2 months, under the circumstances related above, was sufficient compliance with the Act to protect them against discharge, and that the further requirements by the Respon- dent Union and by the Respondent Company, at the former's insistence, that they (1) attend the union meeting at which they would be voted upon, and (2) take the obligation of membership required of members under the Respondent Union's constitution, are in addition to the requirements of the Act and hence violative thereof. . The Respondents contend that the proper construction of the Act permits the contracting union to make these requirements, that they are minimal and rea- sonable, and that the Company's and Union's insistence upon them in this case as a condition of retaining employment, is permissible under the Act. Conclusions By the proviso in Section 8 (a) (3) an employer is permitted to make an agree- ment with a labor organization making "membership therein" a condition of employment. The term "membership" is defined in the Oxford English Dictionary Volume VI, Page 327, as follows : The condition or status of a member of a society or (organized) body. The term "member" is defined in Volume VI, Page 326 as follows : Each of the individuals belonging to or forming a society or assembly. It would seem that the term "membership" in any voluntary organization, used in its ordinary and popular sense, means the "belonging" to the organization and its "members" are those who are entitled to the enjoyment of the privileges of "membership," such as voting and participating in the affairs of the organization. It is common knowledge that, under the bylaws and constitutions of any labor organization, the mere offer of an amount of money equivalent to the. amount required as initiation fee and membership dues, without more, is not sufficient to confer the right to vote and participate in the affairs of the organization, or share in other privileges accorded members. It does not appear that "membership in a labor organization" has acquired any peculiar or unusual meaning in the field of labor relations, although the term does not seem to have been defined in any decision of the Board. The War Labor Board, however, in the Brown & Sharpe 11 Manufacturing Company and International Association of Machinists; recognized the distinction between "members" and "applicants for membership." In that case, which the Respondent's brief cites, the Board said : The Union's request for a maintenance of membership clause which would require not only members of the union but also those who are now or may become applicants for membership to remain members of the union in good standing, involves a policy which it is inadvisable to sustain. Applicants for membership have not.pet been granted the privileges accorded full-fledged periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Section 8 (b) (2) : "To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uni- formly required as a condition of acquiring or retaining membership." Decided.June 2, 1942. 10 LRRM 087. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members nor have they assumed the responsibilities. that go with member- ship. The Board has, in one decision at least, recognized the distinction between members of a union and those who are only required to pay an amount of money equivalent to the amount required as membership dues. In National Electric Products Corporation and United Electrical & Radio Workers of America, Local; 609,' the Board had under consideration a collective bargaining agreement which contained a union security provision under which all employees were required to become members of the Union or, in lieu thereof, to have deducted from their pay a sum equal to the union dues. The Board said: The performance by the Respondent of the May 2.7 agreement would require its employees as a condition of employment to join the Brotherhood or have deducted from their pay a sum equal to Brotherhood dues. The Board found that the labor organization with whom the agreement was, made was assisted by the employer's unfair labor practices, so that the agree- ment was not protected in any event. In footnote 10, on page 486 of its decision, however, the Board said: There is not presented here, and we do not decide, the question whether it is a violation of Section 8 (3) for an employer, pursuant to an agreement with a labor organization representing the unfettered choice of a majority of his employees, to check off from the employee's wages the dues currently owed by them as members of the organization. The deductions required from. employees' wages by the agreement here under consideration are made in the event they do not join the Brotherhood and are equal in amount'to the dues. they would have paid if they had joined it. The agreement does not pro- vide for a check-off of dues owed by members of the Brotherhood. By the language used in the above quotation the Board recognized the differ- ence in the status of those who are members and have joined the union, and those who do nothing more than pay an amount of money equivalent to the amount required of members as membership dues. It seems to the undersigned that the implication of this language is also that a requirement that nonmember em- ployees pay union dues would be considered as a violation of Section S (3) of the Act. In the Iron Fireman Manufacturing Company and Portland Aircraft Workers, Local 737,° the Board pointed out that an "applicant" for membership. in a labor organization did not occupy the same status as one whose application had been favorably acted upon and who had been accepted in the' membership_ The Board held that a contract which required only "application for member- ship" did not come within the protection afforded by the proviso in Section 8 (3) of the Act and that the only kind of agreement which was protected by the pro- viso was one which stated "in unmistakable language" the essentials of a union security agreement, that is, the employee must be required to become a member and must be required thereafter to maintain membership. In view of tiie popular and ordinary meaning of the terms "member" and- "membership" given in the dictionary, as used in union constitutions and bylaws, as understood in the decision of the War Labor Board cited above, and by National Labor Relations Board in cases where those terms were considered,. it would seem that the construction contended for by the General Counsel here. is 'strained. The language of subsection (A) and (B) of the Act seem to the 3 NLRB 475, 486. ° 69 NLRB 19. UNION STARCH & REFINING COMPANY 803 undersigned to be clear and unambiguous and, given the. usual and ordinary meaning of the terms in question, indicate the intent of Congress. By the lan- guage of the first proviso of Section 8 (a) (3), Congress granted the right to em- ployers and unions to make agreements requiring "membership" in the union as a condition of employment. By the language of the second proviso, Congress placed two separate and distinct limitations upon the exercise of that right. By subsection- (A), Congress provided, in substance, that 'where the parties have a union shop, they must have an "open" union, and that if the employer has reasonable grounds for believing that the union is not "open"-that is, that membership in the union is not available on the same terms and conditions gen- erally applicable to other members-it may not justify any discharge of an employee for nonmembership in the union. The tender of dues and initiation fee is not a condition under subsection (A) and would seem to have nothing to do with the limitation imposed by that sub- section. It seems to the undersigned to contemplate a situation where an em- ployee is willing to become a member of the union but the union is unwilling to accept him as a member because of some term or condition applying to him which is not generally applied to all members, and provides protection to the employee in that situation. It contemplates a situation where membership is not available to the employee even though he is entirely willing and anxious to become a mem- ber, the reverse of the situation here. It provides protection to the employee where membership is not available, for example, because of his race, creed, color, or prior activity on behalf of a rival labor organization. In the instant case the evidence is uncontradicted, and it is not contended otherwise, that membership was available to the two Ralphs and to Mrs. Rawl- ings on the same terms and conditions generally applicable to all other employees in the plant, and that they were fully aware of that fact. The Respondent Union did not impose any terms or conditions upon the acquisition of member- ship by these three.employees which were not generally applicable to all other members, and the Respondent Company -took reasonable steps•to satisfy.itself of that fact before it discharged them. It also appears to the undersigned that the language used in subsection 8 (a) (3) (B) of the Act, considered in its usual, ordinary, and popular sense, is sim- ilarly clear and unambiguous. This subsection seems applicable only, by its terms, in the situation where membership has been denied or terminated. The first situation contemplated is one where an employee is willing to comply with the terms of a valid union shop agreement by becoming a member of the union, his application for some reason other than his failure to tender membership and where he has made application therefor, but where the union has denied dues, for example "dual unionism." The other situation is where an em- ployee who has been a member of a union is expelled from such membership for some reason other than his failure to tender membership dues. It is urged, and the undersigned agrees, that an employee must be willing to become a member of a union and make application for such membership before membership can be denied. The two Ralphs and Mary Rawlings, the record amply demonstrates, were entirely unwilling to become members of the Respondent Union, and each of them failed and refused to do anything toward becoming a member other than to offer to pay a sum of money equal to the initiation fee and dues which members were currently paying. Membership in the Respondent Union was never denied them, but, on the contrary, the three employees were assured that they would be accepted as members if they complied with the terms and conditions of membership generally applicable to all members in the bargain- 877359--50-vol. 87 52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing unit, that is, if they (1) attended the meeting at which they were to be voted upon, (2) took the obligation of membership, and (3) paid the initiation fee and dues. Since neither of the Ralphs or Rawlings ever became a member or even applied for membership, and evidently had no desire to do either, the question does not arise of their membership being either terminated or denied. Inasmuch as they did not become members of the organization their offer of the sum of $10- the amount of the initiation fee-and $4-the amount of the accrued dues- did not constitute an offer of the payment of their initiation fee or dues. It constituted merely an offer to pay a sum of money equal to that which members were paying as initiation fees or membership dues, at the same time they re- mained outside the Union and free from all obligations of membership. The record demonstrates, and it is not otherwise contended, that all of the other em- ployees who applied for membership in the union were admitted as members. The undersigned finds that the limitations imposed by subsections (A) and (B) are not applicable to the facts in this case. The construction of the Act con- tended for by the General Counsel would tend to destroy all union security, al- though obviously that was not the intent of Congress in enacting the provisos to Section 8 (a) (3) of the Act. If employees working under union shop agree- ments were permitted to choose between becoming members of the union and buying the right to work by. the payment of an amount of money equal to the amount required from members as membership dues, it is conceivable that a majority of the employees under such an agreement would choose to remain out- side the union as did the Ralphs and Rawlings in this case. In such a situa- tion a union would be of little benefit to either the employees or the employer. The union could not effectively represent the employees if they refused to participate in its affairs. It could exercise no discipline whatever over the employees in the bargaining unit, and would be unable to guarantee the performance of its contracts on the part of employees in a strike situation or other situations neces- sitating control of some kind over its members. As the Respondent Company's brief points out, all the Union would be assured of would be a full treasury. The undersigned concludes and finds that neither of the Respondents by re- questing, or acquiescing in the request for, the discharge of John and Nelly Ralph and Mary Rawlings, violated the Act. Ile will accordingly recommend that the complaint as to them be dismissed. The demotion of Gilbert Thomas and T . R. Chestnut From about 1943 until the time of their demotion on July 26 , 1948, Thomas and Chestnut worked continuously as riggers in the rigger gang. Prior to April 1.948, there were eight employees on this gang . In June 1948 , due to a general reduction of force , the rigger gang was reduced to four in number. These four were Clyde McKinnon, Boone Thomas , T. R. Chestnut , and Gilbert Thomas. Of these Gilbert Thomas and Chestnut had the least seniority. On July 19, pursuant to an agreement ' entered into between the Respondents in an attempt to settle a dispute over the allocation of work between. the riggers 7 The agreement was as follows : It is a joint proposal of the Union and -Management representation that a trial period in operation of the Rigger duties be instituted as follows : The Rigger force assigned by the mechanical department supervisor will accomplish their duties as a. component of the several crafts ; that is, when there is work in a craft requiring the duties of a Rigger, such Rigger is to he assigned to the craft under the supervision of the craft foreman and is to be assisted in his duties by the craft in question. This trial period to be accomplished with a Rigger crew consisting of the two Riggers. UNION STARCH & REFINING COMPANY 805 and the crafts, Foreman Ricketts advised Thomas and Chestnut that they were going to be removed as riggers. Their removal took effect on July 26 and they were transferred to the can house at the rate of $1.27 an hour instead of $1.54 an hour which they had been receiving as riggers. There is some conflict in the testimony as whether the agitation for a cut in the riggers' gang from four to two had its origin in the Respondent Union or the Respondent Company. Parr testified on behalf of the Respondent Company, and Bloodworth on behalf of Respondent Union, that there had been for several years a controversy between the riggers and the members of the other crafts in the Respondent's employ as to who should do the work of the rigging gang. This dispute was temporarily settled to the satisfaction of the crafts when Thomas and Chestnut were transferred on July 26 to the can house. • ;Thomas. and Chestnut complained of their transfer and reduction in pay to Bloodworth, as the business agent of the Respondent Union, on more than one occasion. Bloodworth's response was, in substance, that if the employees had a grievance they should process it through the established grievance procedure, beginning with their shop steward. Hubbard had been shop steward of the rigger gang until May when his employment had been terminated, and no shop steward had been appointed in his place. Bloodworth, it is uncontradicted, had attempted to persuade Thomas and Chestnut as well as McKinnon to take the job and the acceptance of any one of them would have permitted their grievance to be processed as suggested by Bloodworth. Each of the men had refused the jpb. It is apparent from the record that one reason for their refusal was the fact that both of them had been active as officers in the Chemical Workers when it had the contract with the Respondent Company and that they, like the two Ralphs, Mary Rawlings, and others of the same group whose cases have been discussed above, were not interested in belonging to or having anything to do with the Respondent Union. Finally, in October 1948 McKinnon agreed to act as shop steward and with the cooperation of Bloodworth a special meeting of the Respondent Union was held at which the composition of the rigger gang was argued between the riggers and representatives of the crafts. As a result of the discussion, Bloodworth consented to take the matter up as a grievance with the Respondent Company and he did so, A few days later, Thomas and Chestnut were informed that they were to be reinstated as riggers, and their reinstatement was effectuated on October 18. The General Counsel contends that Chestnut and Thomas were removed from the rigger gang in the first instance because of their activity in behalf of the rival Chemical. Workers, and that it was only after joining the Respondent Union and McKinnon's agreement to act as steward that they were reinstated to the rigger gang. If their transfer were to be found discriminatory, Thomas and Chestnut would be entitled to the usual order of the Board for the difference in pay between the work in the can house and as a rigger from the time of their removal as riggers until their reinstatement as such. The undersigned believes the evidence insufficient for finding that the Union was motivated by the reasons assigned by the General Counsel. So far as the Respondent's knowledge of the motives which the General Counsel contends prompted the Respondent Union is concerned, there is even less evidence. The. dispute between the riggers and the crafts was of long standing, and while the Respondent knew of the rival union interests of the employees in question it can- not be assumed merely from that fact they knew that the Respondent Union was improperly motivated. While both Thomas and Chestnut belonged to the group 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a half a dozen or so employees who, together with the two Ralphs and Mrs. Rawlings, originally objected to joining the Respondent Upion or doing anything else other than paying the amount of initiation fee and monthly dues paid by members of that organization, all of them, excepting only the two Ralphs and Rawlings, subsequently changed their minds. It has been found above that the Respondent Company properly insisted that all these employees join the Respondent Union if they wished to hold their-jobs. When they did join, and McKinnon agreed to act as shop steward and to process the grievance of the riggers, the grievance was settled satisfactorily to them and they were reinstated in their jobs. The undersigned finds that neither the Respondent Company nor the Respond- ent Union discriminated against either Thomas or Chestnut because of their union activities. He will accordingly recommend that the complaint be dismissed as to Thomas and Chestnut. CONCLUSIONS of LAW Respondent Grain Processors' Independent Union, Local No. 1, was, at the time of the events herein complained of, and American Federation of Grain Millers, Local 153, now is, a labor organization within the meaning of Section 2 (5) of the Act. The Respondent Union Starch and Refining Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Neither of the Respondents has engaged in any unfair labor practices within the meaning of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the com- plaint against the Respondents be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, any party may, within twenty: (20) days from the'date of. service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other hart of the record or proceeding (in- eluding rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, with- in the same period, file an original and six copies of a brief-in support of the intermediate Report. Immediately upon the filing of such statement of ex- ceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers tiled with the Board shall be promptly made as required by Section 203.8.5. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations, and recommended order herein contained shall, as provided in Section 203.45 of UNION STARCH & REFINING COMPANY 807 said Rules and Regulations, be adopted by the board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 21st day of July 1949. HORACE A. RUCKEL, Trial Examiner.