The Eclipse Lumber Co., Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, and upon the entire record, we are of the opinion, contrary to the Employer's contention, that its operations ate• sufficiently identified with the national defense effort to warrant the assertion of jurisdiction in this case.-' 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section cJ (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : We find, substantially in accord with the stipulation of the parties, that all truck drivers at the Employer's Long Beach, California, plant, excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 5 See Harvey Stoller, d/b/a Richland Laundry <C Dhy Cleaners, 93 NLRB 680 Cf. Westport Moving and Storage Company, 91 NLRB 902; Memphis Cold Storage TVaiehouve Company, 91 NLRB 1404. THE ECLIPSE LUMBER COMPANY, INC. and INTERNATIONAL WOODwoRic- ERS OF AMERICA, LOCAL 2-101, CIO and CHARLES B. MARL. Case•S Nos. 19-CA-328 and 19-CB-118. July 24,19-1 Decision and Order On February 14, 1951, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging 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. The Trial Examiner also found that the Respondent Company had not engaged in any unfair labor practice and recommended that the complaint be dismissed with re- spect to the Company. Thereafter, the General Counsel and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board 1 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 In- 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a thiee -member panel [Chairman Herzog and Members Reynolds and Murdock]. 95 NLRB No. 59. THE ECLIPSE LUMBER COMPANY, INC. 465 termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent that they are consistent with our findings, conclusions, and order, hereinafter set forth. The relevant facts giving rise to this case are substantially as follows. At the time of the execution of a valid union-shop contract,2 on April 25, 1950, 15 of the Respondent Company's employees, including Charles B. Marl, were 6 months or more delinquent in their union dues and consequently, although not expelled or suspended, they were not members in good standing.3 Union officials decided that the 15 mem- bers in bad standing would be required to pay all their back dues as a condition of reinstatement in good standing but that the Union would accept the smaller sum of $27.50, if the employees objected strenuously to paying all back dues. The sum of $27.50 represented a $10 regular initiation fee, plus the current month's dues of $2.75, plus $15 (the equivalent of 6 months' dues) as a flat sum for'back dues. In union meetings, the Union gave notice that it would request the Company to discharge any employee covered by the contract who failed to maintain membership in good standing. Although the Union had a maintenance-of-membership contract in 1944, so far as appears there was no union-security contract in exist- ence during the period immediately preceding execution of the con- tract of April 25, 1950. The Union filed its petition for a union- authorization election on January 10, 1950. The 15 employees, except Marl, paid the Union either their back dues in full or the sum of $27.50; 4 of these 14 also each paid the sum of $2 to cover a fine for failure to do picket duty in order to achieve membership in good standing. Marl, on being told that he owed the Union the sum of $85.75, including a $2 fine for failure to picket, refused to pay. At the end of the 30-day period, Marl had not paid any of his dues; thereafter, on May 29, 1950, the Union requested the Company to discharge Marl because he "failed" to "place himself 2 The union-security clause of the contract provided : All employees shall be required , as a necessary condition of continued employment, to become members of the Union in good standing not later than thirty ( 30) days from the effective date of this agreement or the beginning date of their first employ- ment, whichever occurs later, and to maintain such membership in good standing thereafter. The Union shall notify the employer in writing of any employee who fails to become or remain a member of the Union in good standing , and the Employer shall, immediately upon receipt of such notification dismiss any such employee from employment. The constitution of the Union's parent international provided that any member 6 months in arrears for the nonpayment of dues or assessments "shall" be suspended from membership ; and that any person "dropped " for the nonpayment of 6 months' dues or assessments shall join as a "new member" by paying the regular initiation fee required by the local Union plus 6 months' dues . We find, as did the Trial Examiner, that under this provision suspension was not automatic but required direct action by the'Local and that no such action was here taken. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in good standing in this Local Union," and the Company discharged Marl on the same day without explanation or further inquiry. The circumstances under .which Marl was discharged and 4 of the remaining 14 employees achieved membership in good standing are more fully set forth in the Intermediate Report, and are hereinafter referred to .4 The complaint alleged in substance that : (1) The Union, in April and May 1950, threatened 15-named employees that it would cause the Company to discharge them unless they paid sums of money in excess of initiation fees and periodic dues uniformly required; (2) the Union caused the Company to threaten such discharge; (3) by the foregoing conduct, the 15 employees, except Marl, were coerced to pay sums of money to the Union in excess of the initiation fees and periodic dues uniformly required; (4) on or about May 29, 1950, the Union requested the Company to discharge Marl because of his refusal to pay sums of money in excess of initiation fees and periodic dues uniformly required, all in violation of Section 8 (b) (1) (A) and 8 (b) (2) ; and (5) on or about May 29, 1950, the Company discharged Marl, pursuant to the Union's request, because of his refusal to pay sums of money in excess of the initiation fees and periodic dues uniformly required, and has since failed and refused to reinstate him in violation of Section 8 (a) (1) and 8 (a) (3) of the Act. 1. The Trial Examiner found that Marl was discharged "because of his failure to pay union obligations which had arisen at a-time when there was no contractual obligation to maintain membership in the Union as a condition of employment." He concluded however that the Company did not violate Section 8 (a) (3) and (1) of the Act by discharging Marl, because the Company did not have knowl- edge or reasonable grounds for a belief that Marl's failure to achieve union membership in good standing was based on reasons other than his failure to tender current dues or initiation fees. Section 8 (a) (3) of the Act provides that no employer shall justify any discrimination against an employee for nonmembership in a labor organization. (A) if he has reasonable grounds for believing that such mem- bership 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 4 Only 4 of the 14 employees were called to testify as to the detailed circumstances under which they achieved membership in good standing. The General Counsel announced that he was not calling the 10 remaining employees of this group , in view of the testimony of the 4 and the testimony of a union official who admitted at the hearing that he warned employees that the Union would request the Company, pursuant to the terms of the contract, to discharge those who did not maintain membership in good standing. THE ECLIPSE LUMBER COMPANY, INC . 467 required as a condition of acquiring or retaining member- ship ; .. . We find that membership was not available to Marl on the same terms and conditions generally applicable to other members within the meaning of proviso (A), above quoted. The Union's demand violated the ban of proviso (A) for the reason that the Union required Marl to pay all back dues, namely, $83.75, and did not afford him an- opportunity to achieve membership in good standing by the payment of $27.50, as it did in the case of other members not in good standing. We also find that membership in good standing was denied Marl, within the meaning of proviso (13), quoted above, for reasons other than failure of Marl to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining mem- bership. The Union's demand required Marl to pay membership obligations which accrued at a time when there was no valid union security contract in existence requiring maintenance of membership as a condition of employment; 5 and in effect, the Union refused to afford Marl an opportunity to achieve good standing in the Union by payment of $12.50, the uniform initiation fee plus the current month's periodic dues. Moreover, the Union required Marl to pay a fine of $2 as a condition of achieving membership in good standing and retaining employment. Neither the back dues nor the fine con- stituted "periodic dues" or "initiation fees uniformly required" within the meaning of proviso (13). In addition, we find, as did the Trial Examiner, that Marl's failure to tender any dues does not preclude a finding of violation of Section 8 (a) (3). We have previously held that an employee need not make a tender of uniform initiation fees or periodic dues to be entitled to protection under proviso (A), if membership in the contracting union is made available only upon compliance with a discriminatory term or condition.6 We have found above that membership in the Union was not made available to Marl upon a nondiscriminatory basis. We have also held that a formal tender is even unnecessary in cases in- volving proviso (B) where the circumstances indicate that such a tender would have been a futile gesture.' We are convinced, as was the Trial Examiner, that the Union would have neither permitted Marl to achieve membership in good standing nor refrained from requesting his discharge even if he had made a tender of $12.50. We do not agree with the Trial Examiner, however, that the Com- pany did not violate Section 8 (a} (3) and (1) of the Act by dis- 6 Thus, the discharge of Marl for refusal to pay dues for a period antedating the contract falls within the ban of decisions forbidding retroactive enforcement of union- security contracts . Colonic Fibre Co. v. N . L. R. B., 163 P. 2d 65 ( C. A. 2) ; New York Shipbuilding Corp ., 89 NLRB 1446 ; General American Transportation Corp., 90 NLRB 239. 8 Kaiser Aluminum & Chemical Corporation, 93 NLRB 1203. ' The Baltimore Transfer Company of Baltimore City, Inc., 94 NLRB 1680. 961974-52-vol. 95-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging Marl. It is true that in order to hold the Company liable it must be. shown that it then knew or had reasonable grounds for be- lieving (1) that membership was not available to Marl on terms and conditions generally applicable to members, or (2) that membership was.denied or terminated for reasons other than failure to tender the periodic dues, and uniform initiation fees. The Trial Examiner reached the conclusion that the Company did not know, or have reasonable grounds to believe, that the Union was imposing a discriminatory condition upon Marl by (1) discredit- ing Marl's testimony that he reported the facts with reference to his, predicament with the Union to management representatives Brad- ford and Schultz; 8 and (2) finding that notice could. not be imputed to. the Company by reason of conversations with other manage- ment representatives because, in one instance, the management rep- resentative, William Carpenter, the Company's sales manager, was not the type of management representative whose knowledge ought to be imputed to an employer, and, in another instance, because the "nature of the information derived" by the other management representative, Foreman Butterfield, as a result of the conversation in question did not appear in the record, and because of the "casual way" in which such knowledge, if any, "was acquired." According to the Trial Examiner's findings, which we adopt, about the middle of May 1950, shortly after a union representative had threatened Marl with discharge at the end of the 30-day grace period pursuant to the terms of the union-security contract unless he paid $83.75 to cover back dues and a fine, Marl hailed Carpenter in the plant where, according to Marl's testimony, the following conversa- tion ensued : I think about a day or a couple of days later I talked to Bill Carpenter. He came down here, and I called Bill over. . . He is the head salesman, or something; I just don't know what he is ... he is the nephew of Mr. Stuchell.... He was going through there and I called him over; I called him by "Bill ", and he came over there and I said, "Bill, I am in a funny predicament here". He said, "What's the matter, Windy". I said, "Well, I went up to the hall here and Pete says I owe them $85.25 to get straightened up with the Union." He said, "Why so much"? I said, "I don't know". I said, "I won't pay it". He said, "Well, our hands are tied, If you don't pay it, we. will have to let you go, and I am . 8 We adopt the, Trial Examiner 's credibility finding in this respect as it is supported by a preponderance of the evidence . However, the Trial Examiner did not mention Bradford's admission in his testimony that he had heard rumors that Marl had a dispute with the Union. We credit such testimony of Bradford. THE ECLIPSE LUMBER COMPANY, INC. 469 afraid that we are going to have to lose some pretty good men, from what I understand, because a lot of them are overcharged".. Then I said, "Well, you can figure you are going to lose one, be cause I am not going to pay it. I am going to let them fire me first". He said, "Why don't you go up and make them an offer"? I said, "I'm not going to go up and make them any kind of offers," and I wanted to know what he [they] wanted $85.00 for. He said, "Well, I don't know, either." And he walked off. The Trial Examiner does not mention Carpenter's admission in his testimony, which we credit, that he was told by Marl in the course of this conversation that the Union was seeking to collect the fine from him. The Trial Examiner concluded that Carpenter was "not the type" of management representative "whose knowledge . . . ought to be imputed" to the Company for the following reasons : (1) His duties did not require him to give direct attention to the Company's problems of personal administration or labor relations matters. (2) His presence in the mill at the time of his conversation with Marl was directly related to his work as a sales manager. (3) The encounter and conversation with Marl were casual. (4) Carpenter's statements in the conversation were "gratuitous" or at least, not "derived from" Marl's statements. We do not regard these factors as controlling. Carpenter was the Company's general sales manager. He was a minor stockholder and the nephew of the Company's general manager. With respect to the Company's operations, next to the general manager, he was the most responsible in the managerial heirarchy. When asked whether he had other duties at the plant besides that of sales manager, Carpenter credibly testified : "Well, specifically, that is my actual job. However, I do get out in the mill for an hour or two every day going over the operations and seeing what is going on, so that I have a pretty good picture of the entire operation of the mill." Under the circumstances, we conclude that Carpenter's knowledge is attributable to the Company. The record also shows that, about May 10-12, 1950, while at lunch in the plant, Marl told his supervisor, Butterfield, a foreman in charge of about 30 workers in the planing mill, that he, Marl, was willing to pay the Union the sum of $12.75, and that he was considering quitting because of "razzing" he was receiving at the hands of fellow employees who urged Marl to put himself in good standing with the Union; and that Butterfield urged Marl not to quit and to retain his job until the matter resulted in his discharge. Thus, contrary to the Trial Exam- 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iner's finding, the record shows "the nature of the information derived" by Butterfield as a result of this conversation. Notwithstanding the "casual way" in which such information was acquired, which we do not regard as controlling, we conclude that Foreman Butterfield's know- ledge is attributable to the Company. Marl had been employed by the Company over 25 years. In 1944, the Union had requested the Company to discharge Marl for refusal to pay a political assessment, and Marl quit his employment as a result of the request. Admittedly, there was talk in the plant, in April- May 1950, among employees about the dispute between the Union .and Marl which came to the attention of Bradford, the Company labor relations representative. Marl told Carpenter that the Union was de- manding $85.25, including a fine; and Carpenter informed Marl that the Company would honor a union request for discharge although Carpenter understood that many employees were being "overcharged" by the Union. Moreover, Foreman Butterfield was advised by Marl that he was willing to pay $12.75 to the Union, and Butterfield indi- cated that Marl faced discharge unless he placed himself in good standing with the Union. Under all the circumstances, we are convinced and find that the Company had reasonable grounds to believe, at the time of the Union's request for Marl's discharge, that the Union was requesting the-dis- missal because Marl refused.to pay the Union the back dues or fine.9 The Respondent Company discharged Marl because he was not a member in good standing in the Union. However, the union-security contract did not justify the discharge, as the Respondent Company contends. Such membership was not available to Marl on the same terms and conditions generally applicable to other members ; such membership was denied or terminated for reasons other than the fail- ure of Marl to tender the periodic dues and the initiation fees uni- formly required as a condition of acquiring or retaining membership; and the Respondent had reasonable grounds for so believing. Under these circumstances, the Respondent Company was not justified in discriminating against Marl for not being a member in good standing in the Union. Accordingly, we find that, by discharging Marl and by thereafter refusing to reinstate him, the Respondent Company dis- criminated in regard to hire or tenure of employment to encourage membership in the Respondent Union in violation of Section 8 (a) (3) of the amended Act, and thereby interfered with, restrained, or 4 About a week after Marl's discharge, when he applied for reinstatement to his job, _Marl told Personnel and Labor Relations Director Bradford that the Union insisted upon payment of $85, and Bradford informed Marl that the Company's "hands" were "tied" unless Marl satisfied the Union. The complaint alleges an unlawful refusal to reinstate, as well as the discharge. THE ECLIPSE LUMBER COMPANY, INC. 47 1 coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1). 2. The Trial Examiner found that the Union attempted to cause the Company to discriminate against Marl, in violation of Section 8 (b) (2), by requesting his discharge. The Union excepts to this finding on the following grounds : (1) That it would be paradoxical to find the Union guilty of attempting to cause discrimination against Marl by requesting his discharge when the Trial Examiner exonerated the Company for having honored the request; (2) that union membership was available to Marl on terms and conditions generally applicable to other members within the meaning of proviso (A) to Section 8 (a) (3) ; and that there can be no violation of 8 (b) (2) in view of the fact that Marl made no tender of any dues 10 We find no merit in these contentions, for the reasons indicated above in connection with Marl's discharge. Accordingly, we find that the Respondent Union demanded the dis- charge of Marl. to whom it had not made membership available on the same terms and conditions generally applicable to other members, and to whom it had denied membership in good standing for reasons other than Marl's failure to tender the periodic dues and the initia- .tion fees uniformly required as a condition of acquiring or retaining membership. As the Respondent Company violated Section 8 (a) (3) in making the discharge which the Respondent Union demanded, we find that the Respondent Union caused the Company to discriminate against Marl, and thereby violated Section 8 (b) (2). We further. find that, by causing the Respondent Company discriminatorily to discharge Marl, through thetillegal 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 Act. 3. The Trial Examiner found that the Union violated Section 8 (b) (1) (A) of the Act by statements made by Pete Nelson, the Union's financial secretary-treasurer and business agent, in which Nelson warned Marl that he would be discharged under the contract unless he paid the Union's demand in full. We agree with this find- ing for the reasons given in the Intermediate Report 11 However, the Trial Examiner in substance recommended dismissal of the complaint, 10 The Union also contends that Marl quit his job and was not discharged, as the Trial Examiner found. This finding rests on a resolution of conflicting testimony. As the Trial Examiner's credibility finding is supported by a preponderance of the evidence, we reject this contention. "The Union excepts to the 8 (b) (1) (A) finding based on threats made by Nelson to Marl on the ground that the Trial Examiner should have credited Nelson's denials that be made no such threats. We reject this contention, as the Trial Examiner's credibility resolution is supported by a preponderance of the evidence. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as it alleged that the Union similarly threatened the 14 rein- stated employees with discharge, on the ground that the alleged threats either were not made or, where made, were not legally attrib- utable to the Union. Only 4 of the 14 employees who achieved reinstatement in the Union testified as to the circumstances surrounding payment of the Union's demands.12 As to these four, the Trial Examiner concluded either that no threats were made to them or, where made, were attrib- utable to the Union. As to two of these four employees, the Trial Examiner found that no threat was made. In one instance, employee Sylvester Koski was told by Nelson that a failure to pay would result in the termination of his employment; this statement was made in the course of making change after Koski had paid the amount demanded. Whether or not Koski was coerced into paying the amount demanded by the Union, it is clear that Nelson's statement amounted to a threat. In another instance, the employee involved, R. E. Dawson, was told by Union Secretary-Treasurer Nelson that Dawson could "suit" himself when he referred to the possibility that he would be "through" if he did not pay the full amount requested by the Union. In the light of all the circumstances, Nelson's statement was reasonably calculated to constitute a threat of discharge. In two other instances, the remaining 2 employees, Ben Mont- gomery and Herman C. Kosbab, were told by Ed Kroeze that failure ,to pay the amount requested of them would lead to their discharge under the union-security contract. The Trial Examiner concluded that Kroeze was an ordinary union member and hence his threats were not attributable to the Union. We do not agree. Kroeze canvassed the delinquents armed with a list furnished by the Union showing the amount owed by each of the 15 delinquent members and was au- thorized to collect these sums. Kroeze had formerly been a full- time,' paid, special organizer for the Union. His threat followed the pattern of Nelson's ultimatum to the employees. We conclude there- fore that Kroeze had apparent authority to represent the Union and that the employees had reasonable cause to believe that he in fact had authority to act for the Union in this matter. Hence, Kroeze's threats to Montgomery and Kosbab are legally attributable to the Union. The Trial Examiner also concluded that Nelson's admission at the hearing did not establish that illegal threats were made to the dues- delinquent employees. He found that Nelson's testimony was ambig- uous as to the time when his statements were made, namely, whether 12 As stated above, at the hearing the General Counsel announced that he was not calling the 10 remaining employees of this group in view of the testimony of the 4 and the testimony of Nelson. who admitted at the hearing that he warned employees that the Union would request the Company, pursuant to the terms of the contract , to discharge those who did not maintain membership in good standing. THE ECLIPSE LUMBER COMPANY, INC. 473 before or after the effective date of the union-security provision. In view thereof and because of Nelson's denial that he ever threatened to invoke the sanctions of the union-security clause with respect to any of.the dues delinquents, the Trial. Examiner concluded that Nelson's requests for full payment of the amounts due were not "so closely linked" to his "previous prediction in regard to the invocation of the contractual sanctions against delinquents as to constitute illegal re- straint or coercion." We do not agree. The statements in question appear to have been made shortly before the union-security contract was signed and during the following 30-day period. Moreover, the Trial Examiner found that Nelson threatened Marl with contract sanctions unless he met the Union's demands; and we have adopted this finding. Whether or not the Union caused the 14 reinstated union members to pay their delinquent 'dues by the use of threats of discharge, and whether or not the Union made such threats individually to each of the 4 employees referred to above, we are convinced and find that the Union, through Nelson, warned the dues-delinquent employees as a class that the Union would apply to the Company for their discharge unless they paid the Union sums of money in excess of the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Under the amended Act, a union may deny membership to an employee upon any ground it wishes; however, the only ground upon which it can have a nonmember or a member not in good standing discharged under a union-security clause is the employee's refusal to tender periodic dues and regular initiation fees. Here the Union threatened to have these employees discharged with= out respect to tender of such dues and fees. A union may not lawfully threaten to do what would be unlawful for it to do. Accordingly, we find 13 that the Union, by making such threats of discharge, re- strained and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1) (A).14 The Remedy Having found that the Respondents engaged in unfair labor prac- tices, we shall order them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 11 Member Murdock dissents from this finding. For the reasons fully set forth in the Intermediate Report, he would adopt the Trial Examiner's recommendation that the complaint be dismissed in this respect. 14 The complaint contains an allegation that the Union violated the Act by causing the Company to threaten the dues-delinquent employees with discharge . The Trial Examiner found no evidence to support this allegation . As there is no specific exceptiog to this finding , we adopt it. 474 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD - We shall order the Respondent Company to offer Charles B. Marl immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges. As we have found that both the Respondent Company and the Respondent Union are responsible for the discrimination against Marl, we would normally order-them jointly and severally to make him whole for the entire amount of any loss of pay which he may have suffered by reason of the discrimination against him. However, as the Trial Examiner recommended dismissing the complaint as to the Respond- ent Company, in accordance with our practice, we shall exclude the period from the date of the Intermediate Report to the date of the Order herein in computing the amount of back pay for which the. Respondent Company is responsible. The Respondent Union shall be solely responsible for back pay from the date of the Intermediate Report to the date of our Order herein. We shall require the Respondents, jointly and severally, to make Marl whole for any- loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount that he normally would have earned as wages from May 29, 1950, the date of discrimination, to the date of the Intermedi- ate Report, and from the date of this Decision and Order to the date of offer of reinstatement. The Respondent Union may terminate its. liability for further accrual of back pay by notifying the Respondent Company in writing that the Respondent Union has no objection to. Marl's reinstatement. The Respondent Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such- notice. Absent such notification, the Respondent Union shall remain jointly and severally liable with the Respondent Company for all back pay to Marl that may accrue hereafter until the Respondent Company complies with our order to offer him reinstatement.15 For the reasons stated in F. W. Woolworth Company, 90 NLRB. 289, we shall order that the loss of pay on the part of Marl shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the unlawful discriminatory action to the date of a proper offer of reinstatement. The quarterly periods,. hereinafter called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deduct- ing from a sum equal to that which Marl would normally have earned for each such quarter or portions thereof, his net earnings,"' if any,. 15 Von's Grocery Company, 91 NLRB 504. 10 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working. elsewhere than for the Respondent Company, which would not have been incurred but for the unlawful discrimination and the consequent necessity of his seeking employment THE.ECLIPSE LUMBER COMPANY, INC. 475 in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall-further order, in accordance with the Woolworth decision, s pra, that the Respondent Company, upon request, make available to the Board and its agents all pertinent records necessary to compute the amount of back pay due. We shall also require, in accordance with our usual practice, that the Respondent Union furnish copies of its notice, hereinafter referred to, to the Regional Director, said notices to be posted on company bulletin boards, the Company willing. We have found that the Union engaged in an unfair labor practice within the meaning of Section 8 (b) (1) (A) of the Act, in substance by warning employees that they risked discharge under the terms of the union-security contract unless they paid the Union sums of money in excess of the periodic dues and the initiation fees uniformly required as a condition of achieving membership in good standing. We further find that the 14 employees involved here were coerced into making such discriminatory payments by such threats. The General Counsel urges that these 14 employees be afforded restitution for the excess payments over and above the periodic dues and the initiation fees uniformly required. Although these employees may have been legally obligated as a matter of contract liability or as an incident .of membership to pay the back dues and fines involved, the Union resorted to conduct unlawful under the Act as a means of collection. We believe that it will effectuate the policies of the Act to remedy such unfair labor practice by requiring the Union to reimburse the employees, as urged by the General Counsel, and to cease and desist from such unlawful conduct in the future. Accordingly, we shall so order. 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. The Respondent, The Eclipse Lumber Company, Inc.; Everett, Washington, its officers, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Encouraging membership in International Woodworkers of America, Local 2-101, affiliated with the Congress of Industrial Or- ganizations, or in any other labor organization of its employees, by discharging, refusing to reinstate, or by discriminating in any other elsewhere. See Crossett Lumber Company, 8 NLRB 440 . Monies received for work -Performed upon Federal, State, county, municipal , or other work-relief projects shall be -considered as earnings . See Republic Steel Corporation V. N. L. R. B., 311 U. S. 7. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner in regard to their hire, tenure, or any term or condition of their employment. - (2) In any like or related manner interfering with, restraining,, or coercing 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 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 Charles B. Marl immediate and full reinstatement to, his former or a. substantially equivalent position without prejudice to his seniority or other rights and privileges and jointly and sev- erally with the Respondent Union make him whole in the manner set forth in the section entitled "The Remedy" for any loss of pay suffered'. by reason of the discrimination against him. (2) Upon request, make available to the National Labor Relations. Board, or its agents, for examination and copying, all payroll records,. social security payment records, time cards, personnel records and reports, and all other records necessary for a. determination of the amount of back pay due and the right of reinstatement under the, terms of this Order. (3) Post at its mill in Everett, Washington, copies of the notice attached hereto and marked "Appendix A." 17 '-Copies of said notice;- to be furnished by the Regional Director for•-the Nineteenth Region," shall, after being duly signed' by the Respondent Company's repre- sentative, be posted by it immediatel! upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices, to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered,. defaced, or covered by any other material. '(4) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps. it has taken to comply herewith. 2. The Respondent, International Woodworkers of America, Local. 2-101, affiliated with the Congress of Industrial Organizations, its; officers, representatives, and agents, successors, and assigns, shall : (a) Cease and desist from : (1) Causing or attempting to cause The Eclipse Lumber Company,. Inc., Everett, Washington, its officers, agents, successors, or assigns, to discharge any employee to whom membership in the Respondent Union 17 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcin5." THE ECLIPSE LUMBER COMPANY, INC. 477 was not available on the same terms and conditions generally appli- cable to other members, 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 The Eclipse . Lumber Company, Inc., Everett, Washington, its officers, agents, successors, or assigns, in the exercise of their right to refrain from any or all 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 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) Jointly and severally with The Eclipse Lumber Company, Inc., its officers, agents, successors, and assigns, make whole Charles B. Marl for any loss of pay that he may have suffered because of the discrimi- nation against him, in the manner described in "The Remedy" section, above. (2) Reimburse the employees named in Appendix C for the dis- criminatory overcharge of dues, fees, or fines paid by them, by re- funding to each of them the sum paid by each in excess of $12.50. (3) Post in conspicuous places in its business office in Everett, Washington, and all other places where notices to members are cus- tomarily posted, copies of the notice attached hereto and marked "Appendix B." 18 Copies of said notice, to be furnished by the Re- gional Director for the Nineteenth Region, shall, after being duly signed by official representatives of Local 2-101, be posted by the Local immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto as Appendix B, for posting, the Company willing, at the office and place of business of the Com- pany, in places where Appendix A is posted. Copies of said notice,. to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed as provided in paragraph (2) (b) (2) of this Order, be forthwith returned to the Regional Director for such posting. (5) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 18 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before' the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALI, EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in INTERNATIONAL WOOD- WORKERS OF AMERICA, LOCAL 2-101, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, or in any other labor organiza- tion of our employees, by discriminating in any manner in regard to their hire, tenure of employment, or any term or condition of employment. WE 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 Sec- tion.7 of the Act, .except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by Sec- tion 8 (a) (3) of the Act. WE WILL offer to Charles B. Marl immediate and full rein-' statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as the result of the discrimination against him. All our employees are free to become or remain members of the above-named union or any other labor organization except to the ex- tent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment of any employee as to whom membership in a union holding such a contract was not avail- able on the same terms and conditions generally applicable to other members, or as to whom membership in such union has been 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. TIIE ECLIPSE LUMBER COMPANY, INC., 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. THE ECLIPSE LUMBER COMPANY, INC. 479 Appendix B To ALL MEMBERS OF INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 2 -101, AFFILIATED WITH TIIE CONGRESS OF INDUSTRIAL.ORGANIZA- TIONS, AND TO ALL EMPLOYEES OF THE ECLIPSE LUMBER COMPANY, INC., EVERETT, WASHINGTON Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause THE ECLIPSE LUMBER COMPANY, INC., Everett, Washington, its officers, agents, succes- sors, or assigns, to discharge employees, as to Whom membership has not been made available on the same terms and conditions generally applicable to other members, because they are not mem- bers of Local 2-101, or in any other manner cause or attempt to cause that company, its officers, agents, successors or assigns, otherwise to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of THE ECLIPSE LUMBER COIMIPANY, INC., Everett, Washington, in the exercise of their rights to refrain from any or all 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 authorized by Section 8 (a) (3) of the Act. WE WILL make Charles B. Marl whole for any loss of pay he may have suffered because of the discrimination against him. WE WILL refund to each of the following employees the sum paid by each of them in excess of $12.50, representing the discrimi- natory overcharge of dues, fees, and fines paid by them : Ben Montgomery Donald Keller Raymond Brown John Roberts Harold Cree EdMontroy Ed Hottendorf J. E. Keller W. M. Newman R. E. Dawson S. Koski A. Retland H. C. Kosbab Paul E. Kenna INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 2-101, CIO, Labor Organization. Dated -------------------- By ------------------------------------------ (Representative) (Title) 480 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix C Ben Montgomery S. Koski J. E. Keller Raymond Brown H. C. Kosbab- R. E. Dawson Harold Cree Donald Keller A. Retland Ed Hottendorf John Roberts Paul E. Kenna W. M. Newman Ed Montroy Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges and an amended charge duly filed by Charles B, Marl, an individual designated in this Report by name, the General Counsel of the National Labor Relations Board,' in the name of the Board, caused the Regional Director of its Nineteenth Region, at Seattle, Washington , to issue a consolidated complaint on October 24, 1950, against The Eclipse Lumber Company , Inc., herein called the Respondent Company, and the International 'Woodworkers of America, Local 2-101 , CIO, designated herein as the Respondent Union. The consolidated com- plaint alleged that the Respondent Company engaged and has continued to engage in unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1) and (3) and Section 2 ( 6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, as amended and reenacted by the Labor Management Relations Act of i947, 61 Stat. 136, designated herein as the Act , and that the Respondent Union engaged and has continued to engage in unfair labor practices affecting commerce, within the meaning of Section 8 (b) (1) (A ) and (2 ) and Section 2 (6) and (7) of the Act. Copies of the charge against the Company, the amended charge against the Union , the Regional Director's order that the cases be consolidated, the consolidated complaint, and a notice of hearing, were duly served upon the Respondent Company, the Respondent Union, and Marl, the charging party. With respect to the unfair labor practices, the consolidated complaint alleged, in substance : ( 1) That the Board, on or about March 7, 1950-after an election held pursuant to Section 9 (e)- (1) of the statute-had certified to the Respond- ent Company and the . Union that a majority of the Respondent Company's employees had authorized the Respondent Union to seek an agreement with the Respondent Company establishing union membership as a condition of employ- ment in conformity with the requirements of the statute, and that the parties, on or about April 25, 1950, had entered into such an agreement ; ( 2) that the Respondent Union, in April and May 1950, had threatened 15 employees' that it would cause the Respondent Company to discharge them-and that it had in fact caused the Company to threaten their discharge-unless they paid to the Respondent Union dues, fees, and assessments in excess of the initiation fees ' The General Counsel and his representative are designated in this Report as the General Counsel, and the National Labor Relations Board as the Board. ' Named in the complaint as Ben Montgomery , Donald Keller, Raymond Brown, John Roberts, Harold Cree, Ed Montroy , Ed Hottendorf, J. E. Keller, W. M. Newman, R. E. Dawson, S. Koski, A. Retland, H. C. Kosbab , Paul E. Kenna, and Charles B. Marl. The record indicates, and I find, that J. E. Keller should have been identified as E. E. Keller, and W. M. Newman as U. W. Newman. THE ECLIPSE LUMBER COMPANY, INC. 481 and, periodic dues, uniformly required by it as a condition precedent. to the acquisition and retention of union membership-thereby itself discriminating against the employees involved, causing the Respondent Company to discrim-' inate with respect to their employment tenure to encourage union membership, and, by its course of conduct, coercing the employees in their exercise of rights statutorily guaranteed; (3) that all of the employees named, except Marl, were, in fact, coerced in this fashion to pay the Respondent Union dues,.fees, and assessments in excess of the initiation fees and periodic dues uniformly required as a condition precedent to the acquisition and retention of union membership (4) that the Respondent Union, on or about May 29, 1950, requested the Re- spondent Company to discharge Marl because he had refused to pay dues, fees, and assessments in excess of the initiation fees and periodic fees uniformly required as a condition precedent to the acquisition and retention of union membership, in reliance upon the union-security provisions of its previously cited agreement; and (5) that the Respondent Company, on or about May 29, 1950, did discharge Marl in violation of Section 8 (a) (3) of the Act, and has since failed and refused to reinstate him, pursuant to the Union's request that it discharge him because of his refusal to pay dues, fees, and assessments in excess of the initiation fees and periodic dues uniformly required by the Re- spondent Union as a condition precedent to the acquisition and retention of membership. By its total course of conduct, outlined in the consolidated complaint, the Respondent Union-it is alleged-committed unfair labor prac- tices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. The action of the Respondent Company with respect to the discharge of Marl is alleged to have involved an unfair labor practice under Section 8 (a) (1) and (3) of the statute. The answer of the Respondent Company, duly filed, admitted the jurisdic- tional allegations of the complaint, but denied that it had committed any unfair labor practices. Affirmatively, it alleged that a union-security authorization election had been conducted among its employees, pursuant to a petition filed by the Respondent Union ; that the results had been certified by the Board on or about February 27, 1950; that a majority of the eligible voters had authorized the Union and the Respondent Company to execute an agreement which would require union membership as a condition of continued employment ; that the Union had requested the Respondent Company to execute such an agreement thereafter, under which employees would be required to join the Union "within 30 days" after the agreement's effective date or after the date of their first employment, whichever came later, and to maintain membership in good stand- ing thereafter; that the Respondent Company had refused; that the Union, thereafter, had called a strike; and that the Respondent Company had, on or about April 25, 1950, executed an agreement which contained such a clause, to settle the strike. It further alleged that the Union had given written notice to the Respondent Company, on or about May 29, 1950, that Marl "had failed to become a member" of the Union, and had requested the Company to discharge him ; and that Marl had declared his intention to resign, and had in fact re- signed, after being apprised of the Respondent Union's written request. The Respondent Company also alleged that it did not. know or have reasonable grounds to believe that union membership had not been available to Marl on the terms and conditions generally applicable to all members or employees, and that it did not know or have reasonable grounds to believe that union member- ship had been denied him for reasons other than his failure to tender the periodic dues and initiation fees uniformly required as a condition precedent to its acquisition or retention. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The answer of the Respondent Union, also duly filed, admitted the jurisdic- tional allegations of the complaint and certain objective facts recited in it, but denied the commission of any unfair labor practices. - On November 3, 1950, the Respondent Company filed with the Regional Direc- tor a motion to dismiss the complaint, a motion for a separate hearing, and a motion that the cause of action against it be separately stated. These motions were referred to me, as a Trial Examiner duly designated by the Chief Trial Examiner; they were denied. Pursuant to the notice, a hearing was held thereafter at Everett, Washing- ton, on November 16 and 17, 1950, before me. The General Counsel, the Re- spondent Company, and the Union were represented by counsel ; all of the parties were afforded a full opportunity to participate, to be beard, and to introduce evidence pertinent to the issues. At the outset of the case, the General Counsel moved to amend his complaint, by the insertion of language intended to clarify the exact nature of the 8 (b) (2) violation charged; neither Respondent objected, and the motion was granted. Later, at the close of the General Counsel's case, a motion to dismiss the complaint, insofar as it alleged a violation of the Act on the part of the Respondent Union by virtue of its conduct with respect to 10 of the individuals named in it, and a motion on the part of the Respondent Company that the complaint, as to it, be dismissed entirely for failure of proof, were denied. Before the hearing ended, the parties argued orally and reserved their right to file briefs. The oral argument is included in the transcript. Briefs have been received from the Respondent Company and the Union. FINDINGS OF FACT Upon the entire record in the case, and upon my observation of the witnesses, I make the following findings of fact : I. THE RESPONDENT COMPANY The Eclipse Lumber Company, Inc., designated elsewhere in this Report as the Respondent Company, is a Washington corporation which operates a lum- ber mill at Everett in that State. There, it is engaged in the manufacture of finished lumber. It purchases, annually, logs produced locally valued in excess of $500,000, and makes sales of its finished lumber, in the same period, valued in excess of $750,000, of which more than 50 percent is shipped to destinations outside of the State. The Respondents concede that the operations of the Respondent Company affect commerce within the meaning of Section 2 (6) and (7) of the Act. I find therefore, in accordance with established Board policy' that the operations of the Respondent Company affect commerce within the meaning of the Act, and that the assertion of the Board's jurisdiction in this case is warranted to effectuate the objectives of the statute. It. THE RESPONDENT UNION Local 2-101. of the International Woodworkers of America, affiliated with the Congress of Industrial Organizations-hereinafter designated as the Respond- ent Union-is a labor organization within the meaning of Section 2 (5) of the Act, which admits employees of the. Respondent Company to membership. 3 Stanislaus Implement and Hardware Co., Ltd., 91 NLRB 618. THE ECLIPSE- LUMBER COMPANY, INC. III. THE UNFAIR LABOR PRACTICES 483 A. Preliminary st atenicu.t The' first agreement between the Respondent Company and the Union was executed in 1937, and the Union has been recognized as the exclusive representa- tive of the Respondent Company's employees, in a unit defined by contract, ever since that date. The agreements executed prior to the contract now in full force and effect have not been received in evidence, and the substance of their union-security provisions, if any, is not set forth in the present record ; an inference , however, is warranted that the agreement in effect in June of 1944, at least, contained a maintenance-of-membership clause-I so find. In January 1950 the Respondent Company employed approximately 200-210 men; about 150-175 of these were described by the secretary-treasurer of the Union as union members. Of the latter, 15-named in the complaint-were 3 months or more in -arrears with respect to their union dues, and were carried on the records of that organization as members in "bad" standing, without voice or vote. They had not, however, been formally suspended. The constitution of the Respondent Union's parent international provides thaC members 3 months in arrears for the nonpayment of dues or assessments shall be regarded as delinquent and forfeit voice and vote, unless officially exonerated ; they "may" be suspended from membership. Any member 6 months in arrears for the nonpayment of dues or assessments "shall," accord- ing to the constitution, be suspended from membership." The constitution also provides that : Any person dropped for the non-payment of three (3) months' dues or assessments shall join as a new member by paying all back dues, assessments and fines owed it the time he re-joins, provided that at such time he is not in arrears six months or more. Any person dropped for the non-payment of six (6) months' dues or assessments shall join as a new member by pay- ing the regular initiation fee required by the Local Union to which he applies for membership, and in addition, such person shall pay six (6) months' dues and all assessments and fines owed when dropped from mem- -bership [emphasis supplied] . . . In September 1949, at the request of the Respondent Union, its parent inter- national, pursuant to another constitutional provision, authorized the Union to waive the quoted requirements with respect to the reinstatement of delinquent members for a limited period of time. The effect of this dispensation, as the record shows, was to permit "delinquent" members to reestablish themselves as members in good standing of the Respondent Union upon the payment of a sum equal to that required of new members-the initiation fee and the current month's dues. B. The union-shop authorization election Thereafter, in 1950, at a time not established by the record, the Respondent Union filed a petition with the Board, under Section 9 (e) (1) of the Act, for an election to determine its authority to negotiate a union-security agreement for the Respondent Company's employees. In mid-November of 1949 it had previously, I find, requested the Respondent Company, by letter, to give Ed Kroeze, a rank-and-file employee, a leave of absence to serve as a special organ- 4 The record indicates , however, that suspension pursuant to this provision is not automatic ; action to suspend, by a local union, is required. I so find. 907.974-52-vol. 95-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lzer-apparently in an effort to organize as many of the Respondent Company's employees as possible. Kroeze had received a leave of absence from November 21, 1949, to January 21 , 1950. He was employed by the district council of the Respondent Union's parent international as an organizer , assigned to the Union, and devoted his time thereafter , I find, to organizational work. In the latter part of February, in connection with its campaign antecedent to the UA election, the Union held an open meeting for the Respondent Com- pany's employees .5 At this meeting, I find, Secretary-Treasurer Nelson of the Respondent Union reminded the employees of the dispensation given by its par- ent international , tinder which "delinquent members" were free to rejoin by the payment of an initiation fee and the current month's dues.' Not one of the 15 dues delinquents listed in this Report, however, took advantage of the indicated opportunity. On February 27, 1950, the UA election was held ; a majority of the employees eligible to vote in that election voted to authorize the Respondent Union to execute a union-security agreement. On March 7, 1950, the Board certified the results of the election to the Respondent Company and the Union. . On March 15, 1950, the special dispensation authorized by the Union's parent international ended. In a written notice with respect to an open plant meeting scheduled for March 25, and at the meeting , the Respondent Union announced that membership applications under the dispensation would no longer be ac- cepted, but that employees with applications on file before the 15th would be permitted to meet their financial obligations under the terms of the dispensa- tion at any time before the month ended. C. The union-security agreement On or about April 18, 1950, the Respondent Union called a strike at the Re- spondent Company's plant. The strike had a number of objectives ; one of them, I find, was to force the Respondent Company to execute a union-security agree- ment. And on April 25, 1950, in fact, the strike was settled by the execution of an agreement containing provisions, inter alia, with respect to union security. This agreement provided that: All employees shall be required, as a necessary condition of continued employment, to become members of the Union in good standing not later than thirty ( 30) days from the effective date of this agreement or the begin- ning date of their first employment , whichever occurs later , and to maintain such membership in good standing thereafter. The Union shall notify the Employer in writing of any employee who fails to become or remain a member of the Union in good standing and the Em- ployer shall , immediately upon receipt of such notification dismiss any such employee from employment ( U. N. 2). At the time, I find, all of the dues-delinquent employees of the . Respondent Company, 15 in number , were more than 6 months in arrears in their union dues payments. D. Subsequent developments Early in 1950, on a date not established by the record-but presumably after the execution of the union -security agreement-the officials of the Union ( identi- ° Marl, the principal complainant in the instant case, was present. ° At the time, dues-delinquent employees would have had to pay $12.75-a $10 Initiation fee, $2 .50 as February dues, and $25 as an assessment for the Respondent Union 's building fund. On March . 1, 1950, the assessment was merged , by vote, into the regular dues, payable at the rate of $2.75 per month thereafter. THE ECLIPSE LUMBER COMPANY INC. 485 fled by Secretary-Treasurer Nelson as the strike committee of the organization) met to decide its policy with respect to the reinstatement of dues'delinquent employees under the union-security clause. As a result of their deliberation, was the Union's financial secretary-treasurer and business agent, Pete Nelson, was instructed to request, initially, that all of the delinquent employees pay their actual dues owed, in full. He was authorized, however, in the event of stren- uous objection on the part of an employee, to accept, after plant committee approval, a tender in conformity with the constitutional requirement of the Union's parent international-which, in the case of the Respondent Union, would require the payment of $27.75-a $10 initiation fee, $15 for back dues at the rate of $2.50 per month, and $2.75 for current dues. (Ralph Winn, the Respond- ent Union's president,. who testified in this connection, also stated that Nelson had been instructed to accept $12.75 in full settlement from any dues-delinquent employee who objected to reinstatement on the basis of the constitutional re- quirement. There is no evidence, however, that Secretary-Treasurer Nelson ever felt called upon to advise any delinquent employee of his opportunity to rejoin the Union, in effect, as a new member. Upon the entire record I find that the evidence in this connection reflects an afterthought on Winn's part, calculated to make the Union's original demands appear less blunt ; I believe that Nelson was never authorized, in fact, to accept $12.75 as a full settlement on the part of the dues-delinquent employees. It is so found.) E. The reinstatements On various dates within the 30-day period which followed the execution of the union-security agreement, 14 of the 15 dues-delinquent employees sought and achieved reinstatement as union members in good standing. The amounts they paid in order to achieve reinstatement are set forth, in. summary form, as Appendix A attached to this Report. The circumstances under which each payment was made are established definitively, however, only in 4 cases ; 10 of the employees involved did not testify. A preponderance of the evidence, with respect to the 4 who did, establishes that, in every case, they paid their actual dues arrearages in full. R. E. Dawson, on May 26, 1950, paid $47.75 to the cashier at the union hall. His testimony indicates that he had previously spoken to Nelson, by telephone, a few days before the 25th of April, at which time he had called to determine the amount of his obligation! Dawson was told, I find, that he owed something in excess of $45; he complained of the amount and was told that it represented his actual dues payable. His testimony establishes that he then said, "In that case if I don't pay I am through, is that it?" to which Nelson replied, "Well . . . you can suit yourself about that."' Dawson did not offer to pay a lesser amount at any time. The men then discussed Dawson's plan to pay the amount requested- and Nelson pointed out that his reinstatement would still have to be approved by a union committee. At this point the conversation ended. Sylvester Koski, on May 19, 1950, went to the union hall and questioned Nelson as to what it would cost him to get "squared up" with the "great fraternity" ; ° The General Counsel has confessed surprise at Dawson's testimony that he telephoned Nelson, for the stated purpose, before the strike, previously noted, was settled-but the record will not support an alternative finding of fact. 4In cross-examination Dawson testified that Nelson had said he would either have to pay up "or else" ; he did not go into detail with respect to the circumstances under which the statement was made. Upon the entire record, I infer and find this testimony to Involve a mere recapitulation, intended only to express the impression derived by him as a result of the conversation quoted. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nelson, apparently, consulted a record and told him that he owed $37.75 in- cluding a $2 fine assessed because of his failure to perform picket duty during the strike. Koski then , without argument, tendered two $20 bills . While await- ing change he.inquired, I find, as to what would have happened if he had failed to pay the sum in question ; be was told, in substance, that he would be "through." Ben Montgomery, on or about May 20, 1950, asked Ed Kroeze how much he owed. Kroeze, I find, referred to a piece of paper and told him that he owed $82.75. Montgomery protested the amount as excessive ; Kroeze replied, "That is what they have" with reference to the paper. Montgomery then consulted O. L. Lewis, the sawmill shop steward-on the basis of an understanding that he had served on the union committee designated to determine the amounts payable by the dues-delinquent employees. His testimony with respect to their conversa- tion establishes that he asked the steward if he was not listed for too high a figure ; Lewis confessed ignorance , however, and was told that Kroeze had re- ferred to $82.75 as the amount Montgomery owed. Lewis, I find, replied that, "He is it damned liar. It isn't that much." When asked to fix the extent of Montgomery's obligation, Lewis replied that he did not know the amount, but that it was between $60 and $65, and that he would determine the exact amount that night . Montgomery, apparently , then computed the amount of his unpaid dues; they amounted to $60.75, according to his testimony. At this point, he returned to Kroeze and informed him that his previous quotation had been in error and that the obligation amounted to $60.75 at the most. He showed his figures. Kroeze, however, produced his piece of paper and reiterated the state- ment that Montgomery owed $82.75. When Montgomery looked at the paper, he observed the amount of $62.75 stamped on it. Kroeze's attention was called to his error; he reminded Montgomery that the amount shown included a $2 fine for his failure to perform picket duty. Montgomery's testimony establishes that, in the course of the conversation , lie had inquired as to the consequences if he did not pay the sum listed. Kroeze, I find, told him that he would have to pay it or else. He never offered to pay a lesser amount, and was never told that he might do so. On May 22, 19:50, he paid $50 on account-and on the 29th, an additional $12.75 in full settlement. He was reinstated. Herman C. Kosbab, on May 25, 1950, asked Ed Kroeze about the amount he would be expected to pay. The latter consulted a piece of paper again, and told him that $50.75 was due. Kosbab, I find, then asked, "What if I don't come in?" He was told, "You will probably get the same as the rest of them. You will probably get a pink slip." On the 26th, Kosbab paid $40.75 to the cashier at the union ball. The balance allegedly due was paid at a later date. He never offered to pay any lesser amount, and was never told that he could achieve reinstatement thereby. The only evidence available with respect to the circumstances under which the other dues-delinquent employees achieved reinstatement is to be found in the testimony of Secretary-Treasurer Nelson. His complete testimony-when questioned in this connection , by the General Counsel, as an adverse witness- reads as follows : Q. As a matter of fact, didn't you tell the elder Mr. Keller that unless he paid all of that delinquency , that he was going to lose his job? A. Well, I don't-I never told anybody about that. Q. You never told anybody that? A. No ; unless he paid everything he was going to lose his job. Those who are not in good standing-I have told some-I wouldn't say anybody, but I say those who are not in good standing over three months, I put them on THE ECLIPSE LUMBER COMPANY, INC. 487 notice, that unless you keep yourself. in good standing, the provisions of the contract will be carried out. I put it that way, yes. Q. You told them they would lose their jobs? A. I told them that unless they would keep themselves in good standing, the provisions of the contract will request [require?] them to terminate their employment. * Q. But it is true, though, that unless he [Keller] paid up he would lose his job-that is what you told him? A. I might have said that to anybody, that unless they keep themselves in good standing. I don't recall of one particular person. There are about 1135 altogether. Q. And didn't you at that time [in mid-May ] tell him [Marl] that he would have to pay up, or he would be fired off the job? A. No, I didn't tell that to anyone, that he would have to pay up. Just a minute. I say to "anyone." To a lot of them I say, "Keep your dues in good standing," and then in the notices they [ the Union ] say that, "If you don't keep yourself in good standing the employer will be notified under the terms of the agreement." That is not saying that you are firing them. . Q. But the question was, and you say a lot of them you didn't tell that, but you did toll some, did you not? A. I am saying it that way , that I put it on my notices. Q. Yes, but did you not tell them in oral conversation with them, that unless they paid up they would be fired off the job? A. Oh, I have said it in Union meetings , that unless people kept them- selves in good standing-keep themselves in good standing-why, it is one of the requirements of the contract that you might get fired off the job. Yes, I have said that in public meetings. When called as a witness for the Respondent Union, Nelson denied categorically that he had ever threatened to invoke the sanctions of the union -security clause in an effort to persuade any of the dues -delinquent employees to pay back dues. F. Charles B. Marl Marl, whose employment with the Respondent Company as a regular employee had begun in 1910, served it, intermittently, for 25-28 years thereafter. His last period of employment but one, with it, ended with his resignation on May 10, 1944-at which time he was "delinquent" in his clues to the Respondent Union, which- then had a maintenance-of-membership agreement with his em- ployer.' For approximately 4 years and 3 months, Marl was employed else- where. He resumed work for the Respondent Company, however, on July 29, 1948, at which time he was assigned to a position in its planing mill. He did not, I find, seek reinstatement in the Respondent Union, although several fellow employees had suggested that he ought to join, and was not a union member in good standing when the union-security agreement of April 25, 1950, was executed. Within a few days after its execution, Marl asked W. W. Calkins, the planing B On June 2, 1944, despite his resignation, Marl received a final notice of dues delinquency from the Respondent Union; the record warrants an assumption that he was th(n 3 months in arrears. The circumstances which led up to the delinquency were developed briefly at the hearing ; for the purposes of the present case, however, they are immaterial. 0 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mill shop steward, to determine how much he would have to pay to achieve union membership in good standing; Calkins expressed the opinion that he would probably have to pay $12.75 as a new member. Later, when Marl re- quested additional information, however, Calkins told him that the would have to pay $27.75-the sum mentioned previously as the amount which the Union was authorized to require in reinstatement cases, under its parent international's constitution. Finally, I find, Calkins told Marl that he was "ashamed" to tell him bow much he owed ; he suggested that Marl ought to get the information, himself, at the union hall. On a Thursday in mid-May, presumably on the 11th of that month, Marl called at the union hall to learn the extent of his obligation. He was told by Nelson that he would have to pay $83.75 to cover actual dues owed, and a $2 fine for his failure to perform picket duty. Marl protested the Union's charge as too high ; he was reminded that he was still a union "member" although delinquent. Marl then asked if that was the "best" the Union could do. Nelson replied affirmatively. Marl refused to pay the amount demanded. He was told, in substance, that he would have to "pay up" or be discharged ; Marl's testimony with respect to the conversation, which I credit, establishes an observation by Nelson that if he did not, "at the end of 30 days you know what happens";: the reference to the operative date of the newly executed union-security clause was patent. Marl, I find, made no effort, at this time, to offer a sum less than $85.75 in order to achieve reinstatement.'° His testimony with respect to sub- sequent developments reads as follows : I think about a day or a couple days later I talked to Bill Carpenter. He came down here, and I called Bill over . . . He is the head salesman,, or something; I just don't know what he is . . . he is the nephew of Mr. Stuchell." . . . He was going through there and I called him over ; I called him by "Bill", and he came over there and I said, "Bill, I am in a funny predicament here." He said,- "What's the matter, Windy?" I said, "Well, I went up to the hall here and Pete says I owe them $85.25 to get straightened up with the Union." He said, "Why so much?" I said, "I don't know." I said, "I won't pay it." He said, "Well, our hands are tied. If you don't pay it, we will have to let you go, and I am afraid that we are going to have to lose some pretty good men, from what I understand, because a lot of them are overcharged." Then I said, "Well, you can figure you are going to lose one, because I am not going to pay it. I am going to let them fire me first." He said, "Why don't you go up and make them an offer?" I said, "I'm not going to go up and make them any kind of offers," and I wanted to know what he [they?] wanted $85.00 for. He said, "Well, I don't know, either." And he walked off. That ended the conversation.' Marl, I find, made no further effort to discuss 10 The testimony of Shop Steward Calkins, taken as a whole, does indicate, and I find,. that he had, on one occasion, declared his willingness to pay $27.75-the constitutional requirement. On other occasions however, he declared, as the record shows, that he would be willing to pay only $12.75 to join. He did not, I find, make an effort to tender either amount. 11 The Respondent Company's general manager. - 12 Marl testified, subsequently, that he had spoken of his "predicament" also to Lester Bradford, the Respondent Company' s personnel and labor relations director, about a week or 10 days before his discharge, and that he had mentioned it to "Heine" Schultz, the superintendent in charge of the Company's yard. He did not, however, refer to these conversations in direct examination ; they were mentioned for the first time in cross- examination and in the course of a Pater examination I conducted. His. testimony in regard to his talk with Carpenter carries a degree of conviction because of its circum- THE ECLIPSE LUMBER COMPANY, INC. 489 his situation with a represenative of the Respondent Company. His contrary testimony, set forth below, is rejected. On May 25, 1950, the sanctions authorized in the union-security agreement became available to the Respondent Union. Marl had not yet achieved reinstate- ment. Accordingly, on the 29th, Nelson wrote and delivered to Bradford a letter requesting Marl's discharge. That letter, in its entirety, reads as follows : Under, the Union-Shop agreement, dated April 25, 1950 we are hereby requesting that Charles B. Marl be released from his employment Mr. Marl has had ample opportunity to place himself in good standing in this Local Union, and has failed to do so. Nelson's testimony, with respect to his remarks when the letter was delivered, indicates only that its content was recapitulated without elaboration, and that Bradford requested none. I so find. Bradford, letter in hand, then accosted Marl in the planing mill and advised him that he would be "through" at the end of the shift ; Marl said that he had been expecting it. Bradford, I find, expressed regret with respect to the situation ; Marl accepted his statement, with the observation that the Union should have waited in, order to enable him to get holiday pay for Memorial Day. With an expression of sympathetic acquiescence on the part of Bradford, in regard to the manner in which the situation had "happened" to develop, the conversation ended. Marl received his final check at the end of the shift. G. Subsequent developments On the following Monday, June 5, 1950, Marl and his wife came to see Nelson at the union hall. The available testimony with respect to the conversation that ensued is somewhat in conflict; I credit the mutually corroborative versions of Mrs. Marl and her husband. Marl, I find, asked Nelson how much, he would have to pay in order to achieve reinstatement. Nelson consulted his records and reported that $85.75 was payable. Marl then asked why the Union held him responsible for an $85 payment ; he was told that he owed $83.75 plus a. $2 fine based upon his failure to perform picket duty. He protested the fine, on the ground that he had not been a union member at the time, and was told that he was free to argue the issue with the Union's strike committee. Marl finally asked if he could join for $12.75, as a new member. When Nelson replied that "$85.00 talks," however, Marl reiterated his intention not of pay. He and his wife then left. They repaired at once to Bradford's home. Marl advised him, in substance- apparently on the basis of a previous talk with a Board representative-that he would have to take action which would involve the Company. Bradford indicated that the Company's hands were "tied"; he advised Marl, however, that if he could stantlal detail-and particularly in view of Carpenter's admissions with respect to It ; his testimony with respect to his alleged talks with Bradford and Schultz, however, Involved no readily determinable date, and lacked the spontaneous detail which frequently adds versimilitude to an otherwise bald and unconvincing narrative. The General Counsel did not appear surprised at, and did not probe, Marl's failure to refer to any conversation with Bradford or Schultz, in the course of direct examination. And Bradford, thereafter, Insisted that be had never had a conversation with Marl on the subject. The parties stipulated thkt Schultz, if called as a witness, would testify similarly. Upon the entire record, I can only conclude that Marl's conversation with Carpenter occurred substantially In the form revealed by his testimony, but that his delayed "recollection " of similar conversations with Bradford and Schultz involves, at best, a wishful reconstruction of the situation, honestly formulated, but mistaken. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "get square" with the Respondent Union, he could return to work. Marl reiter- ated his refusal to pay $85 to the Respondent Union and the conversation ended. Ile has not been employed by the Respondent Company since his discharge. Conclusions A. Charles B. Marl 1. Preliminary issues a. Was Marl discharged? Responding to the General Counsel's allegation that Marl was discharged; the Respondent Company contends that he resigned. It asserts that as Bradford approached him to ask about the Union's notice, Marl, observing the letter, stated, "I know what it is, I am quitting anyway"; the Respondent Company alleges that the letter was thereupon shown to Marl, that he made no further comment, and that he did not return to work on the next working clay. . Although I credit Bradford's good faith, as a witness, in connection with his testimony on this point, I have found the testimony of Marl about the incident more consistent with other established facts. There is evidence in the record, it is true, that Marl had, upon occasion, expressed a desire to leave the Respondent's employ, but it will also support a conclusion that he had decided to defer volun- tary action in the face of the Union's demand. He did not, in fact, resign when the sanctions of the union-security clause became available to the Respondent labor organization. The record, not previously cited in this respect, establishes that it was a matter of general knowledge at the Respondent Company's plant, in mid-May, that the regional representatives of the lumber industry and the Respondent Union's parent international had agreed upon three paid holidays- Memorial Day being one-and that compensation at an established rate for these holidays would he payable after the joint recommendations made in that connection by the. respective negotiators had been appropriately ratified. And Marl, as I have noted, did speak, in the course of his last conversation on the job, of his desire to receive the holiday pay (for the first time in his experience as a lumber industry employee) before his employment ended ; whatever his intentions may have been with respect to ultimate resignation, therefore, I find that he did not intend to resign before the holiday. The available evidence, in my opinion, warrants an inference, despite the circumlocutions evident in Nelson's testimony on the point, that the Respondent Union deliberately sought to have Marl discharged be- fore Memorial Day, although aware of his desire to retain company employment until his prospective right to holiday pay had matured. And Bradford, as a wit- ness for the Respondent Company did testify that he had notified Marl's foreman to "separate" him on the 29th. I find, upon a preponderance of-the evidence, therefore, that the action of the Respondent Company did not involve acquiescence in a resignation, but constituted, in fact and law, a discharge. b. Did Marl's discharge involve discri-urination to encoeerage membership in a labor organization? (1) The issue There can be no doubt that Marl's discharge involved discrimination in regard to his employment tenure. No one advances a contrary contention. Nor is it disputed that his discharge, under the terms of a union-security agreement validly executed in conformity with the first proviso of Section 8 (a) (3) of the THE ECLIPSE LUMBER COMPANY, INC. 491 Act, was reasonably calculated to encourage membership in the Respondent Union-a labor organization. In the present state of the law it is, of course, datum that discharges otherwise subject to characterization as discriminatory, are, if made pursuant to a valid union-security agreement, privileged under the statute, without regard to their tendency to encourage membership in a labor organization. Was Marl, then, discharged pursuant to a valid union-security agreement-and did the Re- •spondeiit Company, when it gave effect to the terms and conditions of its con- tract with the Union, proceed within the framework of immunity afforded by the first proviso in Section S (a) (3) of the statute? The statutory provisions, insofar as they are relevant to the present inquiry, declare that : It shall be an unfair labor practice for an employer- . . , by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organiza- tion : Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, . . . - The proviso quoted goes on to define certain additional conditions precedent to the validity of such agreements. Since it is conceded, in this case, that every con- dition precedent to the execution of a valid union-security agreement was met, I find it unnecessary to state the conditions or to subject them to analysis. The only questions of moment under the terms of the first proviso, in short, may be stated as follows : Was the agreement of April 25, 1950, valid under the terms of the proviso? And, if so, was it applied within the framework of immunity afforded by the statutory language quoted?" To that question this Report now turns. (2) The retroactive application of the contract The General Counsel did not question, in this case, the validity of the union-security agreement executed by the Respondent. I am satisfidd, also- after an independent analysis-that it establishes a degree of union security no greater than the statute permits. The agreement's application in connection with the discharge of Marl, however, raises a serious issue-one which, in my opinioii; -established Board policy requires me to consider despite the failure of the parties to recognize or litigate it expressly; that issue arises by virtue of the fact that Marl was discharged, in fact, because of his failure to pay union obligations which had arisen at a time when there was no contractual obligation to maintain membership in the Union as a condition of employment.14 Under the circumstances , I find the agreement between the Company and the Union cannot serve to invest the Respondent Company's action with privilege ; the Board has held, with court approval, that neither Section 8 (3) of the original Act nor '$ Rosedale Knitting Company, 20 NLRB 326, 329-330. "Under the circumstances, the fact that he made no actual tender of the amount required to, rejoin as a new member-$ 12.75--is immaterial. Marl was never advised officially that he could achieve union membership in good standing by the payment of this sum; his tentative inquiry with respect to that possibility was ignored . While his failure to pay the greater sum demanded by the Union obviously included a failure to pay the lesser amount, there can be no doubt that his failure to pay the actual dues. arrearage in full motivated the Union 's request that he be discharged. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 ( a) (3) of the amended Act sanctions the retroactive application .of even a valid union-security agreement' These cases are dispositive of the present issue, unless the absence , in this case, of a factor present in them , requires a different result. 2. The Respondent Company's liability a. The legal tissue The Respondent Company contends, in this case , that when it discharged Marl, it had no reasonable grounds to believe that membership in the Respond- ent Union was not available to him on the terms and conditions generally ap- plicable to other members, or that it had been denied him for a reason other than his failure to tender the periodic dues and initiation fees uniformly required as a condition precedent to the acquisition or retention of membership. Although this argument was advanced in another connection , not yet a subject of discus- sion in this Report, fairness to the Respondent -Company would seem to require that its relevancy, if any, to the issue now under consideration , should be weighed. Pursuant to this opinion , I turn to a consideration of the question logically presented : Is it essential, in establishing a violation of Section 8 (a) (3) of the statute, for the General Counsel to prove that the retroactive appli- cation of a valid union-security agreement was knowingly effected? In my opinion, this question must be answered in the affirmative . It is true that in the "retroactivity" cases previously cited, this requirement was not spelled out ; the decisions show however , in every case, that the Respondent Rmployers, when they gave effect to their contracts, were fully aware of the retroactive nature of the application involved , or posessed information sufficient to put them on notice, or to invest them with a duty to inquire, in that regard" The only comparable case I can find in which a respondent employer was held liable for action taken pursuant to a union-security agreement in the absence of actual knowledge sufficient to make clear the illegal character of the action in- volved, or sufficient to put a reasonable man upon notice in that regard, was a case in which the Board , on the facts, charged the employer with a duty to inquire because inquiry, in the nature of events, was essential to a proper ad- ministration of the agreement ; absent such inquiry, the employer involved was held to have acted at its peril, and a violation was found 34 While the matter is not entirely free of doubt as a question of law, justice and the objectives of the Act, in my opinion , would be most effectively served by a decision that the Respondent Company, in this case , ought to be held liable for the illegal "retro- active" application of its valid union-security agreement only if it can be estab- lished that it knew that Marl had been denied union membership in good stand- Ing and that his discharge had been demanded because of his refusal to meet a "past" obligation to that organization or possessed information sufficient to warrant such a conclusion on the part of reasonable men-or if its obligations in 'connection with the administration of the contract invested it with a duty to inquire as to the "reason" for the union demand. I so find. 's'Colonie Fibre Company v. N. L. R. B., 163 P. 2d 65, 67-69, 70 ( C. A. 2), enfg. 69 1' LRB 589 and 71 NLRB 354 ; Selig Manufacturing Company, Inc., 79 NLRB 1144; lfansilton-Scheu d Walsh Shoe Co., 80 NLRB 1496; New York Shipbuilding Corporation, 89 NLRB 1446; General American Aerocoach , etc., 90 NLRB 239. Cf. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 291 ( Wisconsin Axle Division, The Timken-Detroit Axle Company ), 92 NLRB 1181; Fajardo Development Company, 76 NLRB 956. '6 Cf. Colonie Fibre Company v. N. L. R. B., supra, p. 70. 1' Baker and Company, Inc., 68 NLRB 830 ; cf. General Electric X-Ray Corporation, 76 NLRB 64. THE ECLIPSE LUMBER COMPANY, INC. 493 ,b. Did the Respondent Company know or have reason to believe that Marl's failure to achieve union membership in good standing was due to his refusal to pay past union dues? Upon the entire record, I find that knowledge with respect to the background of Marl's "predicament" and the reason for it cannot be imputed to the Respond- ent Company.18 The responsible officials of the Company were never informed directly, by Marl or anyone else, that the Union had requested him to clear up his dues arrearage in full as a condition precedent to reinstatement, or that' the sanctions of the union-security clause were being invoked by it because of his, failure to comply. Was his conversation with Carpenter sufficient to advise the ,Company in the premises, or to put it on notice in that regard? I think not. -Carpenter was the Respondent Company's sales manager. Although a minor stockholder, and a nephew of its general manager, his duties did not require him to give direct attention to its problems of personnel administration or labor relations matters 19 His presence in the mill at the time of his conversation with Marl was directly related to his work as a sales manager; his encounter -with Marl and the conversation that ensued were casual-and nothing he was told placed him on notice that he would be expected to communicate the sub- -stance of it to other management representatives. He did not, in fact, so com- municate it. Sales Manager Carpenter, in short, is not the type of management representative whose knowledge-whether derived from Marl, directly, or from the gossip of other, unnamed employees-ought to be imputed to the Company; and the circumstances under which his "knowledge" was acquired cannot be said to have invested him with a duty to communicate it to others. His appar- ent assumption that Marl's dismissal would be requested because of his refusal to comply with the Union's retroactive demand, and that the Company would thereupon be required to implement the union-security clauses of their agree- ment would appear to be entirely gratuitous ; certainly, at least, it was not -derived from Marl's remarks in the course of the conversation. Even if it be -assumed for the purpose of argument, therefore, that after Marl's conversation with Carpenter the latter was sufficiently informed with respect to the "retro- active" character of the Union's demand-or the likelihood of a union request -for his discharge because of his refusal to meet it-doubtful assumptions, upon the present record-it follows, and I find, that the Respondent Company was not thereby informed, or placed on notice, with respect to the basis of any antici- pated union action. Nor, in my opinion, can it be said that the Respondent Company, regardless ,of its "ignorance" or lack of information, was charged with -a duty to inquire as to the nature of Marl's alleged delinquency. While the record may well warrant a finding that his refusal to meet the union requirement had been a subject of -discussion among the employees at the mill, I find no reliable, probative, or substantial evidence to sustain a conclusion that management representatives of the Respondent Company, charged with an obligation in the premises, were fully acquainted -with the situation as a result of such employee discussions ; a -contrary conclusion, whatever possible justification for it may be found in a "realistic" appraisal of the situation, so-called, can only rest upon surmise." 18 Spicer Manufacturing Company, 70 NLRB 41 ; Diamond T Motor Car Company, -64 NLRB 1225 ; ef. Basic Vegetable Products, Inc., 75 NLRB 815, 831. 19 Cf. United Engineering Company, 84 NLRB 74, 76. 21 Bradford testified that he did not know. the amounts regularly charged by the Union as an initiation fee, and for periodic dues; in the spring of 1950; while his testimony In this respect might be regarded with suspicion, it is not inherently incredible, and the record will not sustain a contrary conclusion. 494 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD And there is certainly ground for doubt, in any event, that "knowledge" bot- tomed upon mere rumor or hearsay as to the basis of the Respondent Union's demand, would be sufficient, as a matter of law, to charge the Respondent Com- pany with a duty to inquire as to the facts of the matter n' The Union' s request for Marl's termination was timely ; in its context, its presentation raised no obvious doubts as to its legitimacy under the union-security agreement-and no act of omission or commission on the part of either party to the agreement, in my opinion, can be said to warrant a characterization of the Respondent Company's action as action taken at its peril. . - I find therefore, in sum, that the Respondent Company, when it discharged Marl at the Union's request, did so without "knowledge" of the fact that his discharge involved an illegal application of its otherwise valid union-security agreement ; its "ignorance" in that regard, I find, provides it, as a matter of law, with a complete defense to the charge that it discriminated thereby with respect to his employment tenure, to encourage union membership. It follows, and I also find, that the Respondent Company's conduct did not, as a matter of law, interfere with, restrain, or coerce its employees in the exercise of right statu- torily guaranteed. These conclusions, in my opinion, are fully dispositive of the instant case insofar as the Company is concerned. It was, however, principally litigated upon the contention of the General Counsel that the Respondent Company was .not entitled to rely upon its valid union-security agreement as a defense because it had reasonable grounds to believe in the existence of certain facts which. under the second proviso of Section 8 (a) (3), effectively deprived it of the right to claim "justification" for the discrimination. The section of the statute in question provides : That no employer shall justify any discrimination against an employee for nonmembership in, a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the em- ployee 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. The General Counsel contends that the Respondent Company had reasonable grounds for a belief that one or both of these situations existed, and that its action therefore violated Section 8 (a) (3) of the Act; the Respondent Company denies any knowledge or reasonable grounds for a belief as to their existence. It also contends that the evidence will not support a conclusion that union membership was, in fact, denied Marl for a reason other than his failure to tender the periodic dues and initiation fee uniformly required as a condition precedent to the acquisition or retention of membership, because he never tendered the amounts uniformly required. Enough has been said in this Report to indicate the disposition I would make of these contentions if they, in fact, posed the issue for decision. Despite the Respondent Union's contrary contention, there can be no doubt that Marl was zi The record indicates that Marl's situation, and his willingness to pay $12.75 only, had been a subject of discussion in the presence of Planing Mill Foreman Butterfield. The nature of the information derived by Butterfield as a result does not appear in the record ; and I entertain serious doubts, ip any event, that it ought to be imputed to the Respondent, 'in view of the casual way in which his "knowledge"-if any-witli, respect to Marl's "predicament" was acquired. Spicer Manufacturing Company, supra. THE ECLIPSE LUMBER COMPANY, INC . 495 not a "member" of the Union, in any real sense, when the union-security agree- ment was executed. And there can be no doubt that union membership was not made available to him, thereafter, on the terms and conditions generally applica• ble to other members 22 While his admitted failure to "tender" the periodic dues and initiation fees uniformly required of applicants for membership-in the amount of $12.75-might have rendered it more difficult for the General Counsel to establish, by evidence, that union membership was denied Marl for reasons other than his failure to tender that amount, the absence of a tender cannot be said to put the matter beyond the possibility of proof-despite the Respondent Company's contrary contention. If the issue were before me, how- ever, I would hold, as above, that the information given to the Respondent Company's sales manager by the employee directly involved; and the information available to its officials by way of rumor, were insufficient to provide it with reasonable grounds for a belief that niemb. rship in the Union was not available to him on the terms and conditions generally applicable, or that such member- ship had been denied for an impermissible reason. 3. The Respondent Union's liability a. Did the Respondent Union cause or attea apt to cause the Company to dis- criminate against Marl in violation of Section 8 (a) (3) or otherwise? Section 8 (b) (2) of the statute, which the Respondent Union is alleged to have violated provides that: It shall be an unfair labor practice for a labor organization 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. Since it has been found that the Respondent Company (lid not discriminate against Marl with respect to his employment tenure, in violation of Section 8 (a) (3). or otherwise, it follows that the Respondent Union cannot be said to have "caused" such discrimination. That conclusion, however, does not dispose of the case against it. While it has been found-in effect-elsewhere in this Report, that the Respondent Company committed no unfair labor practice in connection with Marl's discharge, in the absence of proof that it knowingly dismissed him pursuant to a union request grounded in his failure or refusal to settle a past obligation, the Company's lack of knowledge or notice in this respect was certainly due, at least in part, to the Union's lack of candor. Had the Union made a full disclosure of the reason for its request, there can be no doubt that compliance with it on the Company's part would have involved an unfair labor practice. Surely, the Respondent Union cannot be permitted to escape a liability otherwise incurred because it was less than candid in its demand upon the Respondent Company under the union-security agreement. An honest appraisal of congressional intent compels the conclusion that the objectives of the Act would be defeated by such a technical application of its terms. Nor can Marl's fortuitous failure to give adequate notice of his situation "The record warrants a conclusion that he was not even apprised of the possibility that he might achieve reinstatement by the satisfaction of the Union's constitutional requirement. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to responsible officials of the Respondent Company serve to exculpate entirely- the labor organization responsible, in fact, for the discharge. Upon the entire- record, I find that the Respondent Union attempted to cause the Company to. discriminate in regard to Marl's employment tenure, to encourage union mem- bership. And since the Union's course of conduct was intended primarily to, compel the complainant in this case to forego one of the rights which Section 7 of the Act protects, it was, and is also subject to statutory proscription as illegal restraint and coercion. b. Restraint and coercion Upon the record, I therefore conclude and find that the Union, by the state- ments of Nelson to Marl noted elsewhere in this Report,' and by attempting to cause the Respondent Company to interfere with, restrain, and coerce the com- plainant and its other employees in the exercise of a right guaranteed by the Act,24 itself restrained and coerced employees in the exercise of the rights guar- anteed by Section 7 of the statute. B. The reinstated employees 1. Did the. Respondent Union commit an unfair labor practice by discriminatioit against these employees? The General Counsel contends that 'the Respondent Union's course of conduct: with respect of the 14 dues-delinquent employees who sought and achieved rein- statement involved a violation of Section 8 (h) (2) of the statute. The record in this connection, despite the General Counsel's contrary contention, noted else- where, is barren of evidence that the Union "caused or attempted to cause" the Respondent Company to discriminate against these employees with respect to their hire or tenure of employment or any term or condition of their employment, in violation of Section 8 (a) (3) of the Act. It is, nevertheless, contended that a direct violation of the statute on the part of the Respondent Union, without correlative action by the Company, has been established. This contention is bottomed upon a construction of Section 8 (b) (2) not pre- viously litigated in Board cases. Expressed summarily, the General Counsel would apply Section 8 (b) (2) as if it read as follows : It shall be an unfair labor practice for a labor organization or its agents [A] to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or [B] 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. And the General Counsel seeks to establish a violation of Section 8 (b) (2). in this case by evidence that the Respondent Union itself discriminated against the dues-delinquent employees under [B] of the statute thus interpreted, insofar as it treated them differently than it did members or membership applicants as a class. I find no merit in the contention that the statute may be so construed. In effect, the General Counsel would read Section 8 (b) (2) as establishing two unfair labor practices on the part of a labor organization , with only one. 23 H. Milton Newman, 85 NLRB 725. u Clara-Val Packing Company, 87 NLRB 703, 25 LRRM 1159 ; International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 891, supra. _,. THE ECLIPSE LUMBER COMPANY, INC . 497 of. them involving-as a necessary element-discrimination by an employer. The language of the section as adopted, however, gives no indication whatever that Congress intended it to be enforced in such a dichotomous fashion. Had such an intention existed, I feel certain that it would have been more clearly expressed in the formulation of the statute." In addition, it may be noted that the statute speaks of discrimination against an "employee" with respect to whom union "membership" has been denied or terminated ; if discrimination, chargeable solely to a union in its relationship to its members was being made subject to the statutory proscription Congress would certainly have been more apt to define the unfair labor practice involved as discrimination against a "member" of the labor organization. Lastly, it is worthy of note that the argument of the General Counsel, if adopted, would bring Section 8 (b) (2) of the Act, as he construes it, squarely into conflict with the proviso of Section 8 (b) (1) (A) of the statute. A construction of the statute calculated to avoid such conflict, and the resultant necessity of accommodation, is certainly to be preferred. • I find that the interpretation of Section 8 (b) (2) heretofore assumed to be correct avoids the possibility of such conflict and comports with the legislative intent. It is true that the original House bill, H. R. 3020, which later became the. Labor Management Relations Act of 1947 did, in effect, proscribe, as an unfair labor practice, coercive tactics calculated to enforce unreasonable or discrim- inatory financial demands on the part of a labor organization, the imposition of dues or general or special assessments not uniformly imposed upon the. same class of members, and the denial to any member of the right to resign from a labor organization at any time 26 And the House conference managers,- in their statements on the bill as reported out of conference, did say that it made it an unfair labor practice, on the part of a labor organization and its agents, "to discriminate against an employee to whom membership in a labor organization has been denied or terminated on some ground other than non- payment of dues or initiation fees." 2i This statement with respect to the effect- of the conference bill, however, is isolated in the legislative history. The Sen- ate report with respect to the comparable language of S. 1126, containing, in substance, the language which ultimately became that of Section 8 (b) (2) of the Act, makes it clear that Section 8 (b) (2) was designed to protect in- dividual employees from "discrimination in employment" induced by a labor organization 28 With respect to the language of the bill, as it stood before its. amendment in conference, the Senate report stated that: The labor organization may not persuade or attempt to persuade the em- ployer to discriminate against an employee except for two reasons * * * [only one of which is here material] * * * It is to be observed that Unions are free to adopt whatever membership provisions they desire, but- that they may not rely upon action taken pursuant to those provisions in effecting the discharge of, or other job discrimination against an employee, except in the two situations described. And the language of S. 1126, as reported, makes it clear that Section 8 (b) (2) of the Senate bill was intended to proscribe action by a labor organization calculated to induce an employer to discriminate against an employee with re-. 25 Compare the internal structure and punctuation of Section 8 (b) (1) of the Act, in which clauses intended to establish obviously diverse unfair labor practices are separately- Indicated by (A) and (B) respectively. 20 H. R. 3020 , Section 7 (b), 8 (c) (1 ), ( 2) and (4) House Report No. 245, pp. 31-32. 24 House Conference Report No . 510, pp. 42-43. 23 Senate Report No. 105, p. 21. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spect to whom union membership had been denied or terminated for a reason other than the permissible one set forth in the above-mentioned report. The legislative debates offer no support whatever for the construction of Section 8 (b) (2) on which the General Counsel now relies. In the light of the above discussion, I find, in accordance with the contentions of union counsel, no merit in the argument that the Respondent Union committed an unfair labor practice when it "discriminatorily" required the dues-delinquent employees of the Respondent Company to eliminate past arrearages in the matter of dues and fines, in order to achieve reinstatement, and denied membership status to them in the absence of such payments. In the alternative, the General Counsel contends that the evidence will sus- tain a conclusion that the Union "caused" the Respondent Company to join it in the enforcement of a discriminatory condition precedent to the continued em- ployment of the dues-delinquent employees ; he relies upon Marl's testimony with respect to Carpenter's observation that the Company's hands were "tied" in the situation, that it would have to let him "go" if he did not pay the sum demanded by the Union, and that the Company might have to "lose" some "pretty good men" who had been "overcharged" by the labor organization. Essentially, it is contended that the Company had thus indicated acceptance of the Union's position that the dues-delinquents would have to pay the amounts demanded of them, or face discharge-and that in so doing it discriminated against the dues-delinquents by the establishment of a discriminatory condition precedent to their continued employment. I find no merit in this contention. Even if it be assumed, for the sake of ,argument, that the statements of Sales Manager Carpenter may be attributed; as a matter of law, to the Respondent Company, it cannot be said that they established discriminatory terms and conditions of employment. At the very outset of the 'Board's history it established the principle that predictions or threats of discharge calculated to persuade employees to relinquish rights guar- anteed by the Act constituted interference, restraint, and coercion, as dis- tinguished from discrimination. Such predictions or threats of discharge, cal- culated to cause the abandonment of rights statutorily guaranteed, are certainly worthy of characterization as an attempt unilaterally to declare that the re- linquishment of the statutory right will be regarded as a condition precedent to the continued employment of the workers involved ; but the Board has never, to my knowledge, so construed them. Early in its history it did hold that the es- tablishment of closed-shop conditions illegally, by contract, amounted to dis- crimination as well as interference, restraint, and coercion. It has recently reaffirmed that principle. Such a case, however, is not present here. Car- penter made the statements attributed to him almost 3 weeks before the Union made known its views with respect to the application of the union-security agree- ment. At the time of this conversation with Marl any attempt on the part of the Union to seek application of the agreement retroactively would have been premature-and there is not the slightest evidence in the record that Car- penter's interpretation of the Company's obligation was the result of a mutual agreement between it and the Union as to the scope and purport of the union- security clause. Ills interpretation was clearly unilateral; as such, it did not establish a discriminatory condition precedent to the continued employment of Marl and the other dues-delinquent employees-and it would seem to be clear in any event , that the Union did not cause,. or attempt to cause, the Respondent Company to take the position which Carpenter defined. THE ECLIPSE LUMBER COMPANY, INC. 499 2. Restraint and coercion a. Did the Respondent Union restrain or coerce the dues-delinquent employees when it conditioned their reinstatement upon the settlement of obligations in- curred before the execution of the union-security agreement? With respect to this aspect of the instant case, the General Counsel contends that threats of discharge , attributable to responsible union agents , effectively coerced the dues-delinquent employees of the Respondent Company; other than Charles B. Marl, to clear up dues arrearages and fines imposed for their failure to perform picket duty before the union-security agreement of April 25 , 1950, was executed, and that the employees were coerced thereby in their exercise of the right to refrain from concerted activities , of the type defined in Section 7 of the statute.-° Section 8 (b) (1) of the Act, here involved , states that: It shall be an unfair labor practice for a labor organization or its agents .. . to restrain or coerce . . . employees in the exercise of the right guaranteed in Section 7: Provided , That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. The Respondent Union contends , and the General Counsel denies , that its action was privileged under the terms of the proviso quoted . To a consideration of that question , this Report now turns. I find merit in the legal premise of the General Counsel in this respect. While a labor organization may have the. right, by statute, to prescribe its own rules with respect to the acquisition or retention' of membership , the -Respondent Union-in this case, at least-can derive no benefit therefrom . Even if it be assumed, for the sake of argument , and contrary to the contentions of the General Counsel, that a labor organization , pursuant to the proviso, may, by rule, treat dues-delinquent or suspended members differently than "new" members or appli- cants, in regard -to their right to "acquire" or "retain" membership-a doubtful question , which, on the present record , I find it unnecessary to decide-the Re- spondent Union did not confine itself, I find , to the application or enforcement of its rule. It is clear, and I have found, that the Union here sought in every instance, to induce the, dues-delinquents to pay their actual dues owed ; in every case but one, the actual amounts involved were in excess of the amounts other- wise payable , under the Union's constitution , as a condition precedent to rein- statement. Whatever right the Union may have had, therefore, to demand compliance with its "rules" as a condition precedent to the acquisition or reten- tion of membership, or, possibly, to threaten the application of contractual sanc- tions in order to compel settlements in conformity with its rules , it manifestly exceeded the statutory limits of that right in the instant case.90 I conclude, The allegation in the complaint that the Respondent Union also violated the Act by causing the Company to threaten these employees with discharge if they refused or failed to pay the sums demanded by their exclusive representative has no support in the record ; I find that it has not been established. "The Union sought, by extensive testimony, to establish the moral justification for its demand that the men pay thpir actual dues owed. Essentially, it is argued that a worker in the lumber industry, and particularly one employed in a unionized plant, has no moral right to enjoy the terms and conditions of employment won throughout the industry by collective action, and-at the same time-enjoy the right to terminate and resume his union membership in good standing at will without sacrifice or cost, except by constitu- tional withdrawal. The Respondent Union, I find, invested its views in this respect with legal color by its refusal to "suspend" or "expel" dues delinquents ; they were carried on its books as "delinquent" members not in good standing-at least for the duration of 961974-52-vol. 95-33 500 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD and find, that a violation of Section 8 (b) (1) (A) is established in this case, if the evidence can be regarded as sufficient to sustain a finding that threats of economic reprisal were employed to force payments in excess of those required by the Union's constitution-in the case of "delinquent" members or "new" members." This factual question, then, must be considered. b. Were threats, attributable to the Respondent Union, made to enforce an illegal demand in the case of the employees reinstated? Upon the entire record, I find the evidence insufficient to establish, in this case, that threats attributable to the Respondent Union were made to enforce a demand for excessive payments as a condition precedent to reinstatement. Of the four witnesses who testified in this connection, two referred to statements allegedly made by Secretary-Treasurer Nelson. In one case, that of Dawson, the evidence establishes only that the employee referred to the possibility that he would be "through" if he did not pay the full amount requested, and was told that he could suit himself about it. In the other case, that of Koski, the record establishes that he tendered full payment before he made any. inquiry as to the consequences of a failure to pay; only after his tender had been accepted was he told that a failure to pay would have resulted in the termination of his employment. Two of the other reinstated employees consulted EJ Kroeze to learn the amount of their obligations. Each of them, I find, was informed, in substance, that a failure to pay the amount requested of them would lead to their discharge under the union-security agreement. In my opinion, however, the observations of Kroeze in this respect, although coercive, cannot be attributed to the Respondent Union. Before his designation as a special organizer in November 1949, Kroeze had been a rank-and-file employee of the Respondent Company, and, so far as the record shows, a rank-and-file union member. His employment as a special organizer ended in January 1950; at that time his actual authority to speak in the name of the Respondent Union with respect to organizational matters ended. The only question before me, therefore, on the present record, requires a decision as to whether he exercised apparent authority in May 1950, sufficient to bind the Respondent Union. In my opinion, this question must be answered in the negative. He was back at work in the Respondent Company' s mill ; and the record will not support a finding that he held any union office. The mere fact that he carried a piece of paper on which, apparently, the amounts owed by each dues-delinquent employee were listed cannot, in my opinion, suffice to invest him with apparent authority to speak in the name of the Union with respect to the consequences of nonpayment32 I find, therefore, that his state- their employment in the industry and possibly thereafter . The "moral" argument has a great deal of appeal ; but a labor organization cannot defend its implementation as the exercise of a legal right merely by the statement that it is seeking to collect dues "owed" by a "delinquent" member who was never suspended . The simple answer to the argument is that Congress recognized its validity in situations in which a union had won the right to negotiate and enforce a union-security agreement in conformity with Section 8 (a) (3)- but deprived labor organizations of their right to justify action against "free riders" If no valid union-security agreement existed, or if a valid agreement, was being illegally applied and enforced. 31Seamprufe Incorporated (Mavis Lane), 82 NLRB 892; Smith Cabinet Manufacturing Company, Inc., 81 NLRB 138. 32 while the record does show that Kroeze "signed up" some of the dues-delinquent employees on union membership applications in February and March 1950, it also establishes, in the absence of contrary evidence, that all of the union members were authorized and expected to engage in such activities. His activities , in short , were those of an ordinary union member . The statute , and its legislative history, clearly show that conduct attributable to an ordinary union member cannot be imputed to his labor organiza- THE ECLIPSE LUMBER COMPANY, INC. 501 ments to Montgomery and Kosbab, set forth elsewhere in this Report, with respect to the possible consequences of their failure to pay. the actual dues they owed, cannot be attributed to the Respondent labor organization.' The General Counsel also relied upon the admissions allegedly made by Nelson, as an adverse witness, to establish that illegal threats were made to each of the dues-delinquent employees. I find Nelson's testimony, however, set forth elsewhere in this Report, insufficient to establish the General Counsel's con- tention. At best, it establishes that Nelson, upon occasion, has stated that a failure to maintain membership in good standing would lead to a termination of employment, under the provisions of the Union's contract. The General'. Counsel, apparently, would argue that such statements, made prior to May 25,. 1950, when coupled with a subsequent demand for actual dues owed as a condi- tion precedent to reinstatement, operated to put the dues-delinquent employees upon notice that, in their case, membership in good standing and resultant free- dom from the application of the contractual sanctions could be achieved only by the settlement of t}ieir dues arrearages and all fines in full. Assuming, for the sake of argument, the correctness of this position, I find the evidence in- sufficient to support its application. Specifically, I find Nelson's testimony am- biguous as to the time at which these statements were made. That testimony, quoted elsewhere, is susceptible of two interpretations ; the statements admitted' by Nelson may have been made before, as well as after, the sanctions established[ by the agreement became available to the Respondent Union-or they may have been made after May 25, 1950, the agreement's operative date. In the face of Nelson's denial that he ever threatened to invoke the sanctions of the union- security clause with respect to any of the dues delinquents, and in the absence- of other evidence, I cannot resolve this ambiguity in conformity with the Generali Counsel's theory ; I hold, therefore, as a matter of law, that the available evidence- on the point is insufficient to establish that the Secretary-Treasurer's requests for full settlement of the amounts allegedly due were so closely linked to a. previous prediction in regard to the invocation of the contractual sanctions against delinquents as to constitute illegal restraint or coercion. While a "realistic" appraisal of the situation might well warrant a conclusion, that the dues-delinquent employees who sought reinstatement were fully cog- nizant, in fact, of the possibilities implicit in the situation if the union-security agreement were invoked, and of the further possibility that it might be invoked against them if their delinquencies were not settled in full, there is no reliable- evidence in the present record that their awareness of these possibilities was derived from an "agent" of the Respondent Union. Upon the entire record, therefore, I must conclude and find that the Respondent Union in this case cannot be charged with restraint and coercion of the employees involved, in, their exercise of rights statutorily guaranteed. It will be recommended that the complaint, in this respect at least, be dismissed. IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE The activities of the Respondent Union, set forth in Section III, above, which- occurred in connection with the operations of the Respondent Company set forth in Section I, above, have a close, intimate, and substantial relation to^ tion in the absence of evidence otherwise sufficient to establish his agency to act in its name. Accordingly, I find that Kroeze's attempts to proselytize the dues delinquents for- the Union are insufficient , alone-or even in their context-to establish his status as a. union agent after his term as a special organizer had ended. "International Longshoremen's and Warehousemen's Union, C. I. C. et al. (Sunset- Line and Twine Company) , 79 NLRB 1487, 1507-1513. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Since it has been found that the Respondent Union engaged in an unfair labor practice, it will be recommended that it cease and desist therefrom and take certain affirmative action, including the posting and distribution of appro- priate notices, designed to effectuate the policies of the Act. Specifically, it has been found that the Respondent Union attempted to cause the Respondent Company to discriminate against Charles B. Marl in viola- tion of Section 8 (a) (3) of the statute. Since that attempt was successful, in spite of the fact that Marl was discharged under circumstances insufficient to warrant an unfair labor practice finding with respect to the Respondent Com- pany, I shall recommend that the Union notify Marl and the Company, in writing, that it has withdrawn its objection to his employment by the latter. Any such communication, addressed to the Respondent Company, should contain a request that it offer Marl immediate and full reinstatement to his former or to a substantially equivalent position" without prejudice to his seniority .or other rights and privileges. Since, as noted, the Respondent Union committed an unfair labor practice which resulted in the termination of Marl's employment, it will be recommended that the Union make him whole, within the limitations set forth below, for any loss of pay or other incidents of the employment relationship he may have suffered by reason of the Respondent Union's unlawful conduct a" Specifically, it will be recommended that the Respondent Union pay to Charles B. Marl a sum of money equal to the amount he normally would have earned as wages from May. 29, 1950, the date of his discharge, to 5 days after the date on which the Respondent Union notifies Marl and the Respondent Company, in accord- ance with the recommendation previously mentioned, that it no longer objects to his immediate reinstatement, less his net earnings, if any,36 during such period, computed upon a quarterly basis, in the manner established by the Board in the recent Woolworth case,3T and less such other sums as the Company, absent the discharge, would normally have deducted from his wages for deposit with State and Federal agencies on account of social security and similar benefits. It will also be recommended that the Respondent Union pay to the appropriate State and Federal agencies involved, to the credit of Marl and the Respondent {)olnpany, a sum of money equal to the amount which would have been deposited to the credit of each by the Respondent Company, absent the discharge, either to Satisfy a tax obligation of its own, or as the equivalent of deductions properly assessable against Marl's earnings by the Respondent Company on . account of such social security or other benefits. ' CONCLUSIONS OF LAW Upon these findings of fact, and upon the entire record in the case, I make the following conclusions of law : 1. The Respondent Company, Eclipse Lumber Company, Inc., is an Employer -within the meaning of Section 2. (2) of the Act, engaged in commerce and busi- 3q See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, •65 NLRB 827. 3; Pen and Pencil Workers Union, Local 19593, AFL (Wilhelmina Becker), 91. NLRB 883. 1' Crossett Lumber Company,.8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 17F. W. Woolworth Company, 90 NLRB 289. SWAN FASTENER CORPORATION 503 ness activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent Union, International Woodworkers of America, Local 2-101, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By its attempt to cause the Eclipse Lumber Company, Inc., to discriminate against Charles B. Marl in violation of Section 8 (a) (3) of the Act, and by its restraint and coercion of Marl and other employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union did engage and is engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent Company did not, by its discharge of Charles B. Marl at the Respondent's Union request, engage in unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act. 6. The Respondent Union did not, by its request that dues-delinquent employ- ees of the Respondent Company settle all dues arrearages and fines as a condi- tion precedent to reinstatement after the execution of its union-security agree- ment with the Company, restrain or coerce such employees in the exercise of rights guaranteed in Section 7 of the Act. [Recommended Order omitted from publication in this volume.] SWAN FASTENER CORPORATION and LODGE 264 OF DISTRICT 38 OF INTER- NATIONAL ASSOCIATION OF MACHINISTS . Case No. 1-CA-538. July 24, 1951• Decision and Order On January 26, 1951, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding,_ finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of these allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing, including the granting of the General Counsel's mo- tion to withdraw those paragraphs of the complaint alleging viola- tions of Section 8 (a) (2) and (5) of the Act," and finds that no 1 The Respondent has excepted to the granting of this motion . However, we have not rejected the Trial Examiner's ruling as it did not , in our opinion, constitute an abuse of discretion. 95 NLRB No. 48.