Westinghouse Electric Corp.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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.] WESTINGHOUSE ELECTRIC CORPORATION ( SUNNYVALE PLANT) and CLYDE W. SCHEUERMANN INTERNATIONAL ASSOCIATION OF MACHINISTS , LOCAL No. 504 and CLYDE W. SCHEUERMANN. Cases Nos. 2O-CA-328 and 20-CB-102. Sep- tember 28,1951 Decision and Order On March 15, 1951, Trial Examiner Frederic B. Parkes 2nd issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices. alleged in the complaint and recommending that the complaint be dis- missed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed ex- ceptions to the Intermediate Report and a supporting brief. The Respondent Company also filed exceptions and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations, of the Trial Examiner, but only to-the extent that they are consistent, with the Decision and Order herein. 1. The Trial Examiner dismissed the complaint insofar as it alleges= that the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) and the Respondent Company violated Section 8 (a) (3) and 8. (a) (1) of the Act by the discharge of employee Marovich on Sep- tember 20, 1949, and the alleged attempt to discharge employees King,. Pachorik, and Scheuermann on or about September 9, 19491 Con- trary to the General Counsel's contentions, the Board is not convinced by the clear preponderance of all the relevant evidence that the Trial 1 These allegations were added to the complaint on motion of the General Counsel made at the hearing 1 year after the alleged occurrence of the unfair labor practices in question. Contrary to the Respondent Company's exceptions, as the alleged unfair labor practices occurred within 6 months of the filing and service of the original charge, these allegations were properly and timely added in the amended complaint. Cathey Lumber Company, 86 NLRB 157, enforced, 185 F. 2d 1021 (C. A. 5) ; Ferro Stamping & Manufacturing Co., 9a NLRB 1459. 96 NLRB No. 71. WESTINGHOUSE ELECTRIC CORPORATION 523 Examiner's credibility findings are erroneous.2 We shall therefore dismiss the complaint insofar as it alleges such violations. 2. The Trial Examiner found that Scheuermann- failed to -tender dues and a new initiation fee on or before the termination of the 30-day grace period under a valid union-shop contract and that therefore the Union did not violate Section 8 (b) (2) and 8 (b) (1) (A) in request- ing his discharge. The General Counsel excepts to this finding on the ground that the Union indicated to Scheuermann that his tender would not be accepted thereby extinguishing the duty to tender re- quired by proviso (B) of Section 8 (a) (3) and Section 8 (b) (2)- We find merit in the General Counsel's exception. As more fully described in the Intermediate Report, on March 22, 1949, Scheuermann was fined $500 and expelled from the Union for "dual unionism." In late March, Scheuermann offered Steward Smiley 1 month's dues, but Smiley said : "I can't take dues from you. I have been told not to." On June 3, 1949, the Union returned dues. payments made by Scheuermann during March and May, stating, "You are . . . not a member of the International Association of Ma- chinists and we cannot accept dues from you." On October 10, 1949, the Respondents executed a valid union-shop contract, as was known to Scheuermann s Between October 10 and 17, 1949, employee Ollis, who was fined and expelled from the Union at the same time and for the same reason as Scheuermann, offered to pay dues to Smiley in Scheuermann's presence, but Smiley said, "You know I can't take dues from you guys." On November 11, 1949, after the expiration of the contract's 30-day grace period, the Company discharged Scheuermann at the request of the Union for failing to, comply with'the union-shop clause of the contract. On November 14, Scheuermann spoke with Business Agent Scott as follows : I told him I was out to try to . . . see what we could do about my being laid off at Westinghouse, and he said . . . Yes, Clyde, I think we can do something. You pay your back dues,and your new initiation fee and the $500 fine ... 21n so concluding, we do not rely on the Trial Examiner 's findings that a conference involving union and respondent officials would not have been held in an office with a door open to the adjoining office of employee Andersen ; that Andersen was not a disinterested witness because of her friendship with Scheuermann and employee Ollis ; and that "it is indeed curious" that Andersen did not inform the General Counsel of the alleged occur- rence until a year later. In so finding, however, we do not agree with the Trial Examiner that Scheuermann discussed the union-shop provision with Steward Nunez, a finding at variance with Nunez , confused testimony as to the time and substance of the conversation . Nor do we agree- with the Trial Examiner that "inherent" in Ollis' offer to pay dues made in the presence- of Scheuermann is knowledge on their part of the union -shop clause. As to this point, the record is clear that Ollis' offer was prompted by taunts of "free rider" and a desire, to rejoin the Union. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the Union's actual violation of Section 8 (b) (2) must begin, if at all, on November 11, 1949, the date of Scheuermann's discharge, we do not agree with the Trial Examiner that events before and after the 30-day grace period under the union-shop provision of the contract may not be considered in assessing the Union's conduct. Section 8 ,(b) (2) of the Act limits the effect of union-shop clauses by protecting 'employees against discharge upon the request of the contracting union for reasons other than " . . . failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership" in the union. • Necessarily, therefore, we are concerned herein with the question of whether the reason assigned by the Union in requesting the discharge of Scheuermann, i. e., failure to tender dues and initiation fee, was, in fact, the true reason. Resolu- tion of this question turns largely upon the Union's motive in request- ing Scheuermann's discharge. What occurred before as well as that which followed may be as relevant in establishing motive as that which occurred during the critical 30-day grace period.4 Thus in March and June 1949, before the inception of the union- shop contract, the Union indicated that Scheuermann's offer of dues would not rectify his status as an expellee. Similarly, Smiley, in his rejection of Ollis' offer to pay dues made in the presence of Scheuer- mann during the 30-day grace period, singled out "you guys" as in- dividuals whose good standing in the Union could not be restored by the payment of dues.r, The Union's attitude toward Scheuermann comported with the provisions of its constitution and bylaws by the terms of which expellees pay a reinstatement fee and, in addition, reinstatement may not be effected until unpaid fines "are remitted or paid in full." That the Union had no intention of remitting the $500 fine and, indeed, considered payment thereof a condition both of Scheuermann's reacquiring membership and maintaining employment at the Respondent's plant, was clearly evidenced by Scott's statement following the discharge that Scheuermann pay the fine to regain his job. In view of the foregoing, we are of the opinion that, in asking the 4 Ferro Stamping & Manufacturing Co., supra. e While the Trial Examiner "assumed" that Smiley's rejection of Ollis' offer was within the scope of his authority as agent of the Union, he also indicated that the matter was not "free from doubt." In so observing , the Trial Examiner quoted Smiley 's explana- tion made at the hearing, "if you are not a member you don't have to pay dues so why should I collect dues if they are not a member." But Smiley's actual statements to Ollia and Scheuermann do not support the implication of his testimony that his rejection was not attributable to the Union . As shop steward whose duties included the collection of dues, Smiley was following union rules on the necessity for reinstatement before dues would be accepted when he stated to Ollis in October 1949 , "I can't take dues from you guys," and to Scheuermann in March 1949 , "I can't take dues from you. I have been told not to." We therefore find that in rejecting Ollis' dues Smiley spoke as an agent of the Union. The Trial Examiner ' s finding that the Union did not request Ollis ' discharge because Ollis tendered his dues is rejected. Ollis was' laid off prior to the expiration of the 30-day compliance period. WESTINGHOUSE ELECTRIC CORPORATION 525 Company to discharge Scheuermann ostensibly because he failed to tender dues and initiation fee, the Union in reality asked for and obtained Scheuermann's discharge because of his nonpayment of the fine, a reason which the Act does not countenances Consequently, we are convinced that the Union would not have refrained from re- questing Scheuermann's discharge even if he had timely offered dues and a new initiation fee.' In these circumstances, it was not incum- bent upon Scheuermann to fulfill the obligation of "tender" in order to come within the protection of the Act for "a formal tender is . . . unnecessary in cases involving' proviso (B) where the circumstances indicate that such a tender would have been a futile gesture." 8 Our dissenting colleagues misinterpret our decision when they assert that "every employee, who has failed during the grace period" to tender "may now allege that his discharge was requested for some reason other than this clearly obvious one." The duty to tender is extinguished only where, as in the present case, the union demon- strates by affirmative conduct and statements that tender would not have stayed its request for discharge. Otherwise, of course, an em- ployee has the normal duty to go forward with his tender during the grace period. Accordingly, we find that by causing the Respondent Company to discharge Scheuermann because he had been denied membership in the Respondent Union on some ground other than his failure to tender the dues and initiation fee uniformly required by the Respondent Union as a condition of acquiring membership therein, the Respond- ent Union has violated Section 8 (b) (2) of the Act. We further find that by causing the Respondent Company discriminatorily to discharge Scheuermann through the illegal application of its con- tract, 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. We are of the opinion that the Company did not know or have reasonable grounds to believe that the Union sought Scheuermann's discharge for reasons other than failure to tender dues and initiation fee. Although Industrial Relations .Manager Goodenough knew in March 1949 that Scheuermann was expelled from the Union, there is no indication that Goodenough had reason to believe on November 113 1949, when confronted with the Union's request for Scheuermann's discharge, that the Union had refused to accept dues from Scheuer- mann or was then in any way insisting upon payment of the fine. 8 The Eclipse Lumber Company, 95 NLRB 464; The Electric Auto-Lite Company, 92 NLRB 1073; Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883. ° We assume, without passing on the question , that Scheuermann was obligated -to, "tender" a second initiation fee. - 8The Eclipse Lumber Company, supra; The Baltimore Transfer Company, 94 NLRB 1680. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And while Scheuermann stated to Superintendent McAuliffe on the -octasion of his discharge, "You know ... I was fined and expelled" and McAuliffe replied "... it just wasn't quite right," we are not persuaded therefrom that the Company had reasonable grounds for believing that the Union was then demanding Scheuermann's dis- charge for failure to pay the fine. Indeed, Goodenough inquired of the Union whether the request for Scheuermann's discharge complied with the terms of the contract and whether opportunity for member- ship was extended to Scheuermann without discrimination. The Union replied in the affirmative. In these circumstances, we do not believe that the Company was required to explore the implications of :Scheuermann's protestations, a matter which would necessarily lead to unwarranted intrusion in the internal affairs of the Union. Accordingly, we find that in discharging Scheuermann on Novem- ber 11, 1949, at the request of the Union, the Respondent Company ,did not discriminate in violation of Section 8 (a) (3) and 8 (a) (1) of the Act in that it had no reasonable grounds for believing that the Union's request was for reasons other than Scheuermann's failure to tender dues and initiation fee. We shall, therefore, in agreement with the Trial Examiner's result, dismiss the complaint insofar as it alleges that the Respondent Company committed unfair labor practices. The Effect of the Unfair Labor Practices upon Commerce The activities of the Respondent Union, set forth above, occurring in connection with the operations of the Respondent Company de- scribed in Section I of the Intermediate Report, have a close, intimate, .and substantial relation to commerce, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. The Remedy Having found that the Respondent Union has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action 'designed to effectuate the policies of the Act. , We shall order the Respondent Union to.notify both the Respond- ent Company and Scheuermann that it has no objection to Scheuer- mann's immediate reinstatement to his former or substantially equivalent position' as an employee of the Respondent Company, without prejudice to his seniority or other rights or privileges. We The expression "former or substantially equivalent position " is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. r WESTINGHOUSE ELECTRIC CORPORATION 527 shall also order the Respondent Union, which we have found re- sponsible for the discrimination suffered by Scheuermann, to make him whole, as closely as possible, for any loss of pay he may have suffered by reason of the Respondent Union's unlawful conduct. ° In accordance with our practice, the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay to which Scheuermann is en- titled, because of the Trial Examiner's recommendation that the com- plaint be dismissed. Accordingly, we shall order the Respondent Union to pay to .Scheuermann a sum of money equal to the amount that he normally would have earned as wages from November 11, 1949, the date of the discrimination, to 5 days after the date on which the Respondent Union notifies the Respondent Company and Scheuermann, in accord- .alice with our Order, that it no longer has objection to his immediate reinstatement, less his net earnings " during such period." Consistent with the Board's recently established policy,13 we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of Scheuermann's discharge to the termination of the Respondent Union's liability, as hereinbefore provided. 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 deducting from a sum equal to that which Scheuermann would normally have earned for each quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. Upon the foregoing findings of fact, and upon the entire record in these cases, the Board makes the following additional : . Conclusions of Law 1. The Respondent Union has engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (b) (2) of the Act. - 10 The absence of any reinstatement order against the Respondent Company in no way affects our power to issue a back-pay order against the Union. National Union of Marine Cooks and Stewards, CIO (George C. Qulniey), 92 NLRB 877, and cases cited therein. 11 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 else- where than for the Employer, which would not have been incurred but for the unfair labor practices and the consequent necessity of his seeking employment 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. 12 Our back-pay order shall be construed as set forth in Pen and Pencil Workers Union, Local 19593, APL, supra. 13 P. W. Woolworth Company, 90 NLRB 289. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By restraining and coercing employees of the Respondent Com- pany in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. The foregoing unfair labor practices engaged in by the Re- spondent Union are unfair labor practices affecting commerce within the meaning of Section 2 (0) and (7) of the Act. Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that International Association of Ma- chinists, Local No. 504, San Jose, California, its officers, representa- tives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Westinghouse Electric Corpora- tion (Sunnyvale Plant), its officers, agents, successors, and assigns, to discharge or in any other manner to discriminate against its employees, with respect to whom membership in the Respondent Union has been denied or terminated upon some ground other than failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership or to discharge or in any other manner to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing employees of Westinghouse Electric Corporation (Sunnyvale Plant), its officers, agents, successors, and assigns, in the exercise of their right to engage in or to refrain from, engaging in any and all of the concerted activities guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify Westinghouse Electric Corporation (Sunnyvale Plant), .in writing that it withdraws its objections to the employment of Clyde W. Scheuermann and requests it to offer him immediate and full rein- statement to his former or a substantially equivalent position, without. prejudice to his seniority or other rights and privileges. (b) Notify Clyde W. Scheuermann in writing that it has advised Westinghouse Electric,Corporation (Sunnyvale Plant) that it with- draws its objections to his reemployment and requests it to offer him immediate and full reinstatement. (c) Make whole Clyde W. Scheuermann for any loss of pay he may - t WESTINGHOUSE ELECTRIC CORPORATION 529 have suffered as a result of the discrimination against him in the .manner set forth in the section entitldd "The Remedy." (d) Post in conspicuous places in its business office at San Jose, California, where notices are customarily posted, copies of the notice .attached hereto as Appendix A.14 Copies of said notice, to be fur- nished by the Regional Director for the Twentieth Region, shall, .after being duly signed by the Respondent Union's official representa- tives, be posted by it immediately upon receipt thereof, and maintained ,by it for sixty (60) consecutive days thereafter, in conspicuous places, :including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that such notices are not altered, defaced, or covered by any other :material. (e) Mail to the Regional Director for the Twentieth Region signed -copies of the notice attached hereto as Appendix A for posting, the Employer willing, at its plant in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Re- gional Director for the Twentieth Region, shall, after being signed by the Respondent Union's official representatives, be forthwith returned to the Regional Director for said posting. (f) Notify the Regional Director for the Twentieth Region in writ- ing within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by conduct other than that found to be violative in this De- cision and Order, and that the Respondent Company violated Section 8 (a) (3) and 8 (a) (1) of the Act, be, and it hereby is, dismissed. MEMBER HOUSTON, dissenting in part: I agree that the Union committed unfair labor practices as found by the majority. However, I cannot concur in the -finding that the Company did not also violate the Act. . Admittedly, the Company knew in March 1949 that Scheuermann was expelled from the Union. And while the Company was assured by the Union on November '11, 1949, that its request for Scheuer- mann's discharge was solely for failure to tender dues and initia- tion fee, Scheuermann informed McAuliffe on the same day that he was unable to comply with the union membership requirement of the new contract because, "You know . . . I was fined and ex- 'pelled." McAuliffe replied that he had discussed the matter with Goodenough and "was of the opinion that it just wasn't quite right." 14 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." • 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am unable to construe- Scheuermann's remarks to McAuliffe as other than a flat assertion that the Union was then insisting upon payment of the fine as a condition of Scheuermann's reacquiring membership under the new union-shop contract. That the Company so construed Scheuermann's comments and, indeed, concurred in his view, was manifested by McAuliffe's admission that, in effect, the Union's discharge request was not as appeared on the surface. In my opinion, therefore, the conclusion is inescapable that the Company knew or at least had reasonable grounds for believing that the Union's justification for demanding Scheuermann's dis- charge was mere pretext and that Scheuermann's nonpayment of the fine was in fact the real reason. Accordingly, I would also find that the Respondent Company violated Section 8 (a) (3) and (8) (a) (1) of the Act. MEMBERS MURDOCK and STYLES, dissenting in part : We do not agree with the majority's decision that the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act in requesting the discharge of Scheuermann. Rather we agree with the Trial Examiner that the failure of Scheuermann to take any action between October 10 and November 11, 1949, to become a mem- ber of the Respondent Union, as required by the valid union-security agreement between the Union and the Employer, is fatal to his claim to protection under proviso B to Section 8 (a) (3). On the basis of the evidence before us we cannot accept the major- ity's assumption that if the Respondent Union had been approached by Scheuermann during the first 30 days of the contract it would un- questionably have rebuffed him and then insisted or? his discharge. For the fact is undisputed that Scheuermann made not the slightest effort to obtain membership in the Respondent Union during the crucial period when the Union was obligated by law to consider his application without discrimination. We need not guess whether the- Respondent Union would have elected to pursue an unlawful course or would have recognized its legal obligations at that time. It was never put to that test. Whatever statements may have been made before and after this period, we cannot agree with the majority that these statements constitute a preponderance of evidence in favor of its finding that the Respondent Union in any event would have acted in an unlawful manner.' Nor do we believe that Smiley's state- ment to Ollis in the presence of Scheuermann to the effect that Smiley could not accept dues from "you guys" was sufficient to relieve Scheuer- mann from the legal requirement that he himself take some affirma- tive action to acquire membership in the contracting- Union. The futility doctrine upon which the majority and the General Counsel rely has been applied by the Board only under circumstances in which WESTINGHOUSE ELECTRIC CORPORATION 531, the Union clearly and convincingly made known to the employee concerned during a period when it was under an obligation to accept him on a nondiscriminatory basis that it would not do so.I" In our opinion, this doctrine should be applied in cases of this nature sparingly and with great care. Applied loosely, it imposes an unwarranted burden upon parties who have executed lawful union- security provisions. As a result of the majority's decision in the instant case unions and employers hereafter act at their peril when they rely upon the express language of their contracts, even though they have in good faith followed the detailed and exact requirements of the amended Act. Litigation is openly invited. For every em- ployee who has failed during the grace period of the contract to seek membership in the contracting union may now allege that his dis- charge was requested for some reason other than this clearly obvious one. Every fisticuff adventure between union members may now be- come the basis to establish an unlawful motive for such a request where a lawful motive exists. We do not think that Section 8 (b) (2) requires this result. We prefer rather to rely upon the presump- tion, uncontroverted by substantial evidence during the period of its legal obligations, that the Respondent Union, has acted in a lawful manner. For these reasons we would affirm the Trial Examiner's dismissal of the allegations in the complaint that the Respondent Union has violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Appendix A NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, LOCAL No. 504, AND TO ALL EMPLOYEES OF WESTINGHOUSE ELEC- TRIC CORPORATION (SUNNYVALE PLANT) 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, we hereby notify you that : WE WILL NOT cause or attempt to cause WESTINGHOUSE ELECTRIC CORPORATION (SUNNYVALE PLANT) to discharge or in any other manner to discriminate against its employees in violation of Sec- tion 8 (a) (3) of the Act, or to discharge or in any other manner to discriminate against employees with respect to whom member- ship in our union has been denied or terminated upon some ground other than failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membershp. "See cases cited in footnote 8. 532 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD f WE WILL NOT restrain or coerce employees Of WESTINGHOUSE ELECTRIC CORPORATION ( SUNNYVALE PLANT) In the exercise of their rights to engage in or to refrain from engaging in any or all of the concerted activities guaranteed to them by Section 7, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE wu,L notify WESTINGHOUSE ELECTRIC CORPORATION (SUNNY- VALE PLANT) in writing and furnish a copy to Clyde W. Scheuer- mann, that we have withdrawn our objections to the employment of Scheuermann and that we request his reinstatement. WE WILL make Clyde Scheuermann whole for any loss of pay he may have suffered because of the discrimination against him. INTERNATIONAL ASSOCIATION OF MACHINISTS , LOCAL No. 504, Union. Dated ----------------- By ----------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Clyde W. Scheuermann, herein called the Complain- ant, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Twentieth Region (San Francisco, California), issued his con- solidated complaint dated June 8, 1950, against Westinghouse Electric Corpora- tion (Sunnyvale Plant), herein referred to as the Respondent Company 2 and against International Association of Machinists, Local No. 504, herein called the Respondent Union,' alleging that the Respondent Company had engaged and was engaging 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, as amended, 61 Stat. 136, herein called the Act, and that the Respondent Union had engaged and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent Company, the Respondent Union, and the Complain- ant. With respect to the unfair labor practices, the consolidated complaint, as 1 The General Counsel and his representative at the hearing are referred to as the General Counsel. The National Labor Relations Board is herein called the Board. 2 The name of the Respondent Company appears herein in accordance with an amend- ment to the pleadings , granted during the course of the hearing , to set forth the correct name of the Respondent Company. 2 The Respondent Company and the Respondent Union are at times collectively referred to herein as the Respondents. WESTINGHOUSE ELECTRIC CORPORATION 533 amended during the course of the hearing,' alleged that (1) on or about Sep- tember 9, 1949, during the course of negotiations leading up to a new collective bargaining contract, the Respondent Union attempted to cause the Respondent Company to discharge employees Floyd King, Charles V. Pachorik, and Clyde Scheuermann, and did cause the Respondent Company to discharge employee John Marovich, by requesting such discharges because they had expressed a preference for Independent Westinghouse Workers Union, herein called the IWWU, or had criticized the Respondent Union; (2) on or about November 11, 1949, the Respondent Union caused the Respondent Company to discharge Clyde Scheuermann, by requesting such discharge pursuant to the terms of the Re- spondents' collective bargaining agreement, although the Respondent Union had previously terminated the membership of and denied membership to Scheuer- mann for reasons other than the nonpayment of dues or initiation fees; (3) on or about September 20, 1949, the Respondent Company discharged Marovich pursuant to the request of the Respondent Union; and (4) on or about Novem- ber 11, 1949, the Respondent Company discharged Scheuermann for nonmem- bership in the Respondent Union, although the Respondent Company had reasonable grounds for believing that his membership in the Respondent Union had been terminated and denied for reasons other than nonpayment of dues or initiation fees. The complaint further alleged that by the foregoing conduct, the Respondent Company has engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act and the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the Act. Each of the Respondents duly filed an answer , amended during the course of the hearing to cover the additional matters brought in issue by amendments to the original complaint, denying that either of them had engaged in any of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held fiom August 29' to September 20, 1950, at San Francisco and Sunnyvale, California, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Exam- iner. The General Counsel and the Respondent Company were represented by counsel and the Respondent Union by an official representative. All parties were afforded full opportunity to be beard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues. At the conclusion of the General Counsel's case-in-chief, the Respondent Com- pany moved that the complaint be dismissed in its entirety or in the alternative that the complaint's allegations in regard to Marovich be dismissed. At the same time, the Respondent Union moved that the complaint be dismissed in its entirety and urged various alternate motions for dismissal of certain allega- tions of the complaint. The undersigned denied these motions. At the conclu- sion of the hearing, the motion of the General Counsel that the pleadings be 4 On September 8, 1950, during the course of the hearing, the undersigned granted a motion of the General Counsel to amend the complaint. The principal matters covered by these amendments related to the allegations in respect to the Respondent Union's attempt on September 9, 1949 , to cause the Respondent Company to discharge King, Pachorik, Scheuermann , and Marovich and the Respondent Company's discharge of Marovich on September 20, 1949. The complaint was also amended in minor respects not detailed herein. 5 On February 27, 1951, the undersigned issued an order correcting the transcript to show that the hearing opened on August 29, 1950, and not August 23, 1950, and that on September 1, 1950, the undersigned granted on the record a motion made by the General Counsel with the concurrence of the other parties that the hearing be continued until September 5, 1950. 974176--52-vol. 96-35 534 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD conformed to the proof in respect to minor variances such as names and dates was granted. At the same time, the motions of the Respondents that the com- plaint be dismissed were renewed and ruling thereon was reserved. Those mo- tions are disposed of in accordance with the findings of fact and conclusions of law made below. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before and file briefs or proposed findings of fact and conclu- sions of law, or both, with the Trial Examiner. The Respondents waived oral argument but briefly stated their positions in argument on the renewal of ,their motions to dismiss the complaint. The General Counsel engaged in oral argument. The Respondent Company, the Respondent Union, and the'General Counsel each filed a brief with the undersigned. Pursuant to application duly made and arrangements mutually agreeable to all parties, the testimony of Earl B. Scott was taken by deposition on September 25, 1950, and it is hereby incorporated into the record of the instant proceeding. - Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Westinghouse Electric Corporation, a Pennsylvania corporation with its prin- cipal office at Pittsburgh, Pennsylvania, operates plants throughout the United States, including a plant at Sunnyvale, California. At its Sunnyvale plant, the Respondent Company manufactures electrical and steam equipment, including turbines, transformers, and switch gear. In 1948 and 1949, it purchased for its Sunnyvale plant sheet metal, wire, insulation material, castings, ball bear- ings, oil, and other materials and supplies valued annually in excess of $1,000,000, of which approximately 50 percent was shipped to its Sunnyvale plant from points outside the State of California. In 1948 and 1949. the Respondent Company's sales from its Sunnyvale plant exceeded $8,000,000 annually, of which approximately 50 percent was shipped from its Sunnyvale plant to points outside the State of California. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, Local No. 504, is a labor organization admitting employees of the Respondent Company to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events through September 1949 1. Collective bargaining history ; the elections On March 1, 1947, the Respondent Company assumed ownership of its Sunny- vale plant, which theretofore had been owned and operated by Joshua Hendy Iron Works. For a number of years prior thereto, the latter had had collec- tive 'bargaining contracts, with closed-shop provisions, with the Respondent Union or its predecessor. On May 14, 1947, the Respondents executed a collec tive bargaining contract for a term beginning May 5, 1947, to and including March 31, 1949, and thereafter for successive annual periods unless otherwise terminated. This contract also contained closed-shop provisions. In February 1949, Independent Westinghouse Workers Union, herein called the IWWU, was formed and launched an organizational campaign among the WESTINGHOUSE ELECTRIC CORPORATION 535 Respondent Company's employees. Clyde Scheuermann was-president of the IWWU and in March 1949, upon charges of dual unionism . was tried, fined, and expelled from membership in the Respondent Union. In May 1949 he was in- formed that the International Association of Machinists had approved the action taken in respect to him by the Respondent Union. Meanwhile, the contract between the Respondents expired on April 1, 1949. On June 13, 1949, the Board issued its Decision and Direction of Elections, direct- ing that elections be conducted among three voting groups of the Respondent Company's employees e The employees in one voting group were to determine whether they desired to be represented for-the purposes of collective bargaining by the Respondent Union or the IWWU. The Respondent Union won the election in the voting group in which it participated and was certified as the statutory representative of such employees on July 19, 1949. After the election, the IWWU was disbanded. Pursuant to a consent-election agreement, the Regional Director, on August 25, 1949, conducted a union-shop authorization election among the employees in the bargaining unit for which the Respondent Union was the statutory representative. A majority of the eligible voters authorized the Re- spondent Union to negotiate a union-security agreement and a certificate of the results of the election was issued on September 7, 1949. 2. The alleged discrimination in September 1949, in respect to King, Pachorik, Marovich , and Scheuermann a. The testimony of Chloe Andersen Andersen testified as follows with respect to a meeting held in the office of Mechanical Superintendent John J. McAuliffe on September 9, 1949 : Andersen, in 1949, was employed by the Respondent Company as a copy typist. When McAuliffe's secretary, Louella Walter, took a vacation from September 2 through September 16, 1949, Andersen assumed her position as secretary for McAuliffe, and during that period, occupied an "ante room office" adjacent to that of McAuliffe. On September 9, 1949, McAuliffe was ill and not at work. On that afternoon, a meeting was held in McAuliffe's office in his absence and was at- tended by a group of the Respondent Company's supervisors, including B. H. Goodenough, manager of industrial relations for the Respondent Company ; As- sistant Superintendent Herbert C . Buckingham ; Tool Supervisor W. H. Harri- son ; Foreman Thomas P. Shields ; and possibly "one or two more supervisors," as well as Franklin W. Gorham, assistant business agent for the Respondent Union. According to Andersen, the door between her office and that of McAuliffe was left open and she overheard the ensuing discussion among the' participants in the conference. Goodenough seemed to be in charge of the meeting and opened it by saying, "Mr. Gorham has come in to say a few words." Thereupon, Gor- ham said, "Now that the contract is pretty well buttoned up, I have a list of names of men that I want you to get rid of . . . Floyd King, Johnnie Maro- vich, Clyde Scheuermann, and a man named Pachorik ." In respect to King, Gorham said "He was the worst union member he had ever come in contact with ; he wasn't fit to belong to any union" and furthermore remonstrated , "You not only did not discharge him, but you let him be transferred to the Maintenance Department, where he got a raise in pay." At that point, about 5 minutes after the beginning of the meeting, Gorham left. The supervisors remained and discussed his requests. Goodenough said, "I don't know how you boys feel about this , but I know that Mr. Gorham is only worried about Mr. Gorham . That is, he has been a-pretty 6 Westinghouse Electric Corporation , 84 NLRB 213. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good boy when it came to signing this contract and I think this is the least we can do for him." Foreman Shields stated, "I want to see Johnnie Marovich the first one off that list." Whereupon one of the other supervisors reminded Shields that "Marovich had a lot of seniority." Shields pointed out that Marovich had recently "spoiled a good percentage of material that cost several thousands of dollars and he knew he could get him on that, if nothing else..' Harrison "wanted to know how they would get Floyd King. He had a lot of seniority in his department and he didn't see how he. could terminate him." Goodenough countered, "Well, there must be something he can't do." Harrison replied, "That is just it, there isn't anything he can't do." The discussion turned to Pachorik, and Buckingham remarked that "Pachorik had about twenty-five years' service with the company . . . I feel that any man who has been able to stay with the company for twenty-five years must have some good qualities and if you don't want him, transfer him to my depart- ment. I could use him." Buckingham then asked, "What are we going to do about Scheuermann?" When it was pointed out that Scheuermann was in Buckingham's department, Buckingham said, "Well, if one goes in my department they are all going. There won't be any seniority to quibble about." At that point, the meeting adjourned. That evening, Andersen related the occurrences of the meeting to Scheuermann and Leslie Ollis, who were the principal witnesses for the General Counsel in the presentation of Scheuermann's case. Andersen, Scheuermann, and Ollis were personal friends and their homes were relatively near each other in the same small community, Redwood Estates. b. Testimony of the Respondents' witnesses as to the conference in McAuliffe's office in September 1949 Industrial Relations Manager Goodenough, Assistant Superintendent Buck- ingham, Tool Supervisor Harrison, Foreman Shields, Foreman Sheldon Huffman, and Electrical Superintendent Kermit Clark, who were witnesses for the Re- spondent Company, and Business Agent Gorham and Chief Shop Steward Carl Schwartz, who were witnesses for the Respondent Union, testified that they attended a conference in McAuliffe' s office on a day when McAuliffe was not at work and that only one such meeting in which they all participated was held. Several testified that the meeting was held in September 1949; others stated that it was in the fall or latter part of 1949. As noted above, Andersen fixed the day on which the meeting was held as September 9, 1949. That day is a State holiday, commemorating California's admission to the United States. Bucking- ham recalled that on September 9, 1949, he and a foreman left the Respondent Company's plant about 10: 30 or 11 a. in. in order to witness a parade in nearby San Jose, California, and that they returned to the plant. about 1 or 1: 30 p. in. According to Buckingham, he never absented himself from the plant on those occasions when he was assuming the duties of Mechanical Superintendent Mc- Auliffe. Inasmuch as McAuliffe was ill and not at work on the day the meet- ing in question was held, Buckingham reasoned that it could not have been held on September 9, 1949, the day on which he witnessed the parade during working hours. Business Agent Gorham testified that on September 9, 1949, he spent most of the day in his office at San Jose, being unable to take his automobile from a park- ing lot because of a parade and other celebrations which blocked the streets near his office. He testified that he left the office only once in the afternoon of September 9, 1949, in order to discuss a grievance with the General Electric Company, and denied that he was at the Respondent Company's Sunnyvale WESTINGHOUSE ELECTRIC CORPORATION 537 plant on that date. According to Gorham, the meeting in question was held on September 6, 1949. Schwartz testified that the conference occurred on the day he returned from vacation, September 6, 1949, the day after Labor Day. The record establishes that the meeting in question was held during a period of production and employment curtailment on the part of the Respondent Com- pany. In March 1949, the number of hourly paid employees in the Respondent Company's employ reached a maximum of 1,956. By July 1949, the number of employees had decreased to approximately 1,400. In December 1949, there were 872 employees. The reduction in force was general in scope, affecting all departments of the plant. A synthesis of the mutually corroborative and reconcilable testimony of the eight witnesses for the Respondents named above, in respect to the September conference is as follows : The conference was called by Buckingham to discuss a problem arising from lack of work in the welding department, supervised by Foreman Huff man. Due to the fact that parts had not arrived from a supplier, there was insufficient work for these welders, who at that time were on a workweek of 32 hours rather than the customary 40 hours. Various suggested solutions to the prob- lem were discussed: (1) Layoff of some of these welders and their compara- tive seniority; (2) further reduction in the number of hours of the workweek: and (3) transfer of some of them to the electrical division under Superintendent Clark and Foreman Emil Ghiorso, who were also in attendance at the meeting. Assistant Business Agent Gorham and Chief Shop Steward Schwartz' were pres- ent during, the first portion of the conference when ' the problem concerning welders was being discussed. Gorham suggested that a staggered workweek be inaugurated ; that is, the full complement of welders then in the employ of the mechanical division should be retained but should work alternate weeks, thereby permitting them to draw state unemployment insurance during the weeks they were not employed. Gorham's suggestion was rejected. According to Goodenough and Huffman, the ultimate decision, reached either at this meeting or shortly thereafter, was to retain the welders but to reduce their workweek further until anticipated production work materialized., i At the conclusion of the discussion in regard to the welders, the representa- tives of the Respondent Union, as well as Clark, Ghiorso, and Huffman, left the meeting.8 Foreman Shields then brought up. a problem then, confronting him, namely, the further reduction in the number-of machinists under his supervision. A seniority list showing the length of service of employees in the mechanical division by departments was studied. Shields stated that two employees under his super- vision, John Marovich and James Ashton, produced less from the viewpoint of quantity than did other employees still in his department and that in order to maintain efficient operation and production schedules in his department, he would include Ashton and Marovich in the next layoff of employees of his de- partment and would retain employees with less seniority than Ashton and Maro- vich possessed. Inasmuch as the Respondent Company had been attempting to adhere to seniority in scheduling layoffs as much as possible, industrial Relations Manager Goodenough cautioned, "I think you fellows should also bear in mind that when you go outside the seniority provisions, you must be certain that the employee is not capably performing his work, because in most of these cases, you can be assured that you will receive a grievance. You must be able to justify your decision." During the discussion, Tool Supervisor Harrison was asked 7 Shop Steward Sohm may also have attended the conference. 8 Unlike the other witnesses for the Respondents , Harrison's testimony indicated that Gorham did not leave the conference at this time. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he might have use for the services of Marovich and Ashton in mainte- nance work , which was under Harrison's supervision. Harrison replied that he believed neither of them to be capable of performing maintenance work. Goodenough and Gorham specifically denied the utterance of statements or demands attributed to them by Andersen. Their denials were corroborated in varying degrees by the testimony of Shields, Huffman , Clark, Harrison, Buck- ingham, and Schwartz . These eight witnesses for the Respondents also denied that the names of Scheuermann and Pachorik were mentioned during the con- ference. Shields, Huffman, King, Harrison , Clark, and Gorham testified that King's name was not mentioned in the conference , but Schwartz and Buckingham recalled that a brief reference was made to King in connection with transfers to the maintenance department. Buckingham specifically denied that he stated in the conference, as testified to by Andersen, "Well, if one goes in my depart- ment they are all going. There won't be any seniority to quibble about." c. The release of Marovich In 1941, Marovich entered the employ of the Joshua Heady Iron Works, the Respondent Company's predecessor, and continued to work at the Sunnyvale plant when the Respondent Company assumed its operation. He had been a member of the International Association of Machinists , Lodge 68, the predecessor of the Respondent Union, and had served as chief shop steward of Lodge 68 until the Respondent Union assumed jurisdiction in 1945 over the employees at the Sunnyvale plant and thereafter Marovich was a member of the Respondent Union. At the time of the hearing he still retained his membership in good standing in the Respondent Union. In 1945, after the Respondent Union assumed jurisdiction of the Sunnyvale plant, the Respondent Union asked him to act as its chief shop steward, but he refused to do so and suggested that Schwartz assume that post. About the same time, Marovich discussed the transfer of Lodge 68 to the Respondent Union with its business agent, Earl Scott, and Scott said, according to Marovich, "I wish you would cooperate more with us. You haven't cooperated a darned bit since you boys have come into the local." Marovich replied, "Scotty, I don't see how I could cooperate. I don't like the way the Grand Lodge dumped us without a voice or vote into your local." In May or June 1947, a rival labor organization attempted to organize the Sunnyvale plant and Marovich distributed its membership cards. At a meeting of the Respondent Union in 1948, Marovich expressed an opinion that the officers of the Respondent Union at that time had not been elected in full compliance with its bylaws . Marovich testified that during the 1949 organizational cam- paign of the IWWU, he read its handbills and in conversations with Chief Shop Steward Schwartz, Marovich frequently "kidded him along and told him that was a lot better than what we had in our department or something to that effect." To these sallies, Schwartz countered, "Oh, you are independent?" Maro- vich replied, "Well, not yet." However, he testified further that "I didn't go ahead and make an issue of it at all or arbitrate with him too much on that point." He admitted that nearly all employees in the plant discussed the organizational campaign of the IWWU . The Respondent Union never expelled Marovich from membership or took official action against him for the above incidents and statements. In September 1949, Marovich worked as a machinist in the mechanical division under the supervision of Foreman Shields. On September 19, 1949, Shields told Marovich, according to the latter's credible testimony, "I have to let you go.... Tomorrow will be your last day." Marovich then inquired, "On WESTINGHOUSE ELECTRIC CORPORATION 539 what ground am I being terminated? ... Am I being terminated under the contract we have here for going down by seniority rights and if it is my turn, . . . I have no objection." Shields replied, "No, Johnnie, it isn't that. It is just the idea . . . You are just not cutting the buck . . . You are taking a little too much time on these smaller machines and your time on the big machines has been fairly good but on the smaller machines you haven't been making the time." Marovich said, "Well, that means that I haven't got the skill, Tommie." Shields replied, "No . . . you are just a little too slow." On September 20, 1949, Marovich was "released" from the Respondent Com- pany's employ and before leaving the plant, he had an interview with Employ- ment Supervisor William Kelly." During the conversation, Kelly told Marovich that the reason for the termination of his employment "wasn't because he couldn't do the work" but "because be wouldn't stay on his machine. He wasn't producing the work." 'O Having learned of the release of Marovich, Chief Shop Steward Schwartz discussed the matter with Marovich on September 20, 1949, and suggested that a grievance be filed by the Respondent Union in Marovich's behalf. Marovich concurred with Schwartz' suggestion and Schwartz promptly filed a grievance with Foreman Shields on September 20, 1949. Schwartz discussed the matter with Shields for about 30 minutes on September 20, 1949, but was unable to convince Shields that Marovich's termination of employment should be rescinded. Later the same day, the second step of the grievance procedure was carried out by' appealing the matter to the attention of Superintendent McAuliffe, who was unswayed by the arguments for revocation of Marovich's release.11 On Septem- ber 22, 1949, Business Agent Gorham processed the third and final step of the grievance procedure by discussing Marovich's grievance with Industrial Relations Manager Goodenough. The result of the discussion was that the Respondent Company refused to countermand Marovich's termination of employment. Be- fore signing the grievance form, Gorham told Marovich of the discussion and Marovich told Gorham to drop the matter" ',9 In respect to Marovich's "release " from the Respondent Company's employ, Kelly gave the following explanation at the hearing for the three methods followed by the Respondent Company in terminating employment of employees , namely, layoff, release, and discharge : Marovich was not discharged . Marovich was released for failure to meet produc- tion requirements. . . . We have certain posted shop regulations for which a man may be discharged. A person who cannot or does not or will not meet production re- quirements is released. A person who has done a satisfactory job but the work runs out and it is necessary to dispense with his services is laid off. The first, a discharge for violation of Company regulations , would make it very difficult for that man to get employment again . A release would restrict his employment . . . I would not re-employ a person who has been released back on the same job. It doesn't mean he couldn't work elsewhere if he had the qualifications . A person who was laid off would automatically go on an automatic seniority list for that job or anything similar to that. [Emphasis supplied.] 10 The findings in this sentence are based upon the credible testimony of Kelly. Upon the entire record and from his observation of the witnesses, Marovich's version of the conversation is not credited to the extent that it was at variance with that of Kelly. On September 19 or 20, 1949, Ashton was also released from the Respondent Company's employ. 11 The finding in this sentence is based upon the credible testimony of McAuliffe and documentary evidence . Schwartz could not recall whether he processed the grievance through the second step of the grievance procedure. Upon the entire record, the under- signed credits McAuliffe's testimony in this regard. 17 The findings as to the processing of the grievance through the third step of the griev- ance procedure are based principally upon the credible testimony of Gorham . The Re- spondent Union unsuccessfully processed a grievance in regard to Ashton's termination of employment contemporaneously with the grievance of Marovich. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman Shields and Welsey Johns, leaderman for Marovich, testified that they had compared the amount of production achieved by Marovich with that done by his successor on the same machine on the second shift from May or June to September 1949, and found that Marovich's production rate was low and did not meet the minimum requirements set by the Respondent Company's method study department. Their complaint. related only to the quantity of his production but not the quality of his work. They admitted that they never formally reprimanded Marovich for his low output or warned him that his employment might be terminated, although Johns testified that he told Marovich several times, "Come on, let's get off the dime." Kelly testified that he had bad complaints that Marovich was frequently away from his machine during working hours and that Kelly personally had "gone out in the shop repeatedly ... and told him if he doesn't stay on the machine he wasn't going to be there," both before and after the Respondent Company commenced the operation of the Sunnyvale plant. Aside from Pachorik's testimony that "offhand I would say that [Marovich] was doing a good job," their testimony in this regard was un- controverted. The testimony of Shields, Johns, and Kelly is credited. At the time of the hearing, Marovich was still a member in good standing of the Respondent Union. In April 1950, Assistant Business Agent Gorham tele- phoned Marovich to inquire whether the latter wished employment. Marovich indicated that he did and Gorham referred him to a position with the San Jose Foundry. Marovich said that he would accept the job but upon reconsideration changed his mind and telephoned Gorham that he would decline the job. Rec- ords of the Respondent Union reveal that on June 7 and 8, 1950, the Respondent Union attempted unsuccessfully to reach Marovich by telephone to refer him to job openings. In July 1950, when Marovich came to the offices of the Respond- ent Union to pay his dues, Gorham inquired whether he desired employment and Marovich told him that lie would be ready to take a position as machinist about September. d. Testimony in respect to Pachorik Pachorik entered the employ of the Respondent Company's predecessor in 1946 and continued in the Sunnyvale -plant as a machinist after the Respondent Company assumed its operation" , The only evidence in the record in respect to any possible animus which the Respondent Union might bear Pachorik, is the following undenied testimony of Pachorik : Prior to the representation election and during the-campaign period, Pachorik told Chief Shop Steward Schwartz that Pachorik intended to vote for the IWWU in the election. The day after the election, Schwartz met Pachorik and said , "One of the 68." Pachorik replied, "Well, you fellows won the election. Why harp on it?" Schwartz countered, "Well, anyone that would vote for 68 is a Red." According to Pachorik, 68 votes were cast for the IWWU in the elec- tion and Schwartz was referring to that fact in the conversation. Schwartz was not questioned in regard to this conversation, but he denied that in discus- sions with Gorham in regard to the leaders of the IWWU, the names of Pachorik or Marovich were mentioned. In the fall of 1949, sometime after the release of Marovich from the Re- spondent Company's employ, Foreman Shields informed Pachorik that his name appeared upon a list of employees to, be laid off and suggested that Pachorik talk with Buckingham about obtaining a job in the latter's division. Pachorik 33 Prior to 1946 , Pachorik had worked • at a Philadelphia plant of the Respondent Company. WESTINGHOUSE ELECTRIC CORPORATION 541 consulted with Buckingham later in the day and Buckingham promised that he would find a position for Pachorik if necessary 14 A few days later, Pachorik went to William H. Kelly, employment supervisor, to inquire about the matter and told him that Pachorik had been informed that his name was on a layoff list. Kelly informed Pachorik that when the list of prospective layoffs had been discussed by the Respondent Company's supervisors, it was decided that Pachorik should be retained in the Respondent Company's employ because of Pachorik's special abilities as a machinist but that Kelly would inquire further about the matter. Kelly then went to Industrial Relations Man- ager Goodenough and told him of his conversation with Pachorik. Goodenough confirmed Kelly's recollection of the decision of the Respondent Company to retain Pachorik in its employ and told him to inform Pachorik that he would not be laid off. McGilvray, who was with Goodenough at the time, affirmed the decision. Kelly reported the conversation to Pachorik 16 The record discloses that Pachorik was never laid off during the period of drastic reduction in force, that he was retained in the Respondent Company's employ despite the fact that he possessed less seniority than other employees in his department who were laid off, and that the reason for his retention was that he was an especially skilled machinist. e. Testimony in respect to King King worked for the Respondent Company's predecessor at the Sunnyvale plant from late 1941 until June 1944, reentered its employ on April 25, 1946, and con- tinued to work for the Respondent Company after it took over the Sunnyvale plant. The record contains little evidence indicating animus on the part of the Re- spondent Union in regard to King. King was a member of the executive board of the Respondent Union for the year 1948 and testified that on five or six occasions in executive board meetings he voiced opposition to positions taken by Assistant Business Agent Gorham. King admitted, however, that he was some- times. in agreement with Gorham's policies. In May 1948, a question in regard to the interpretation of the vacation, provisions of the then current contract was brought in issue by King, who, believing himself entitled to a longer vacation than 14 The findings in this paragraph are based principally upon the testimony of Pachorik. In large measure , the testimony of Foreman Shields was corroborative of that of Pachorik, except that Shields did not recall informing Pachorik that his -name was on a tentative layoff list. Shields testified that Pachorik was an especially skilled employee whom the Respondent Company desired to retain in its employ and when work which Pachorik had been performing became slack in late 1949 , Shields asked Buckingham if the latter might have a position in his division for Pachorik , so that the Respondent Company could retain Pachorik in its employ. Buckingham asked Shields to send Pachorik to talk with him and Shields relayed Buckingham's request to Pachorik . According to Buckingham, on several occasions Pachorik sought to obtain a transfer to Buckingham 's section but Buck- ingham did not promise to assent to a transfer. Upon the entire record, the undersigned credits the testimony of Pachorik and does not credit Shields or Buckingham to the extent that their testimony was at variance with that of Pachorik. n The findings in this paragraph are based upon the testimony of Kelly who impressed the undersigned as an especially reliable witness. Pachorik's version of his colloquy with Kelly varied in certain details from that of Kelly The principal variance was that Pachorik testified that Kelly informed Pachorik after consulting with McGilvray that the latter said, "That boy will stay if he is the last man in the shop , and if necessary, if you have to change the whole damned contract ." Kelly specifically denied making this state- ment attributed to him by Pachorik . Upon the entire record and his impression of the witnesses , the undersigned credits Kelly 's version of his conversation with Pachorik and does not credit Pachorik to the extent that his testimony was at variance with that of Kelly. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that approved by the Respondent Company, asked Chief Shop Steward Schwartz to file a grievance in King's behalf . Schwartz refused to do so. Later, King discussed the matter with Gorham , who could not agree to King's interpretation of the vacation provisions . At Gorham's request, Goodenough discussed the matter with King a few days later and affirmed the interpretation of Gorham to the contract. King testified that he, Marovich , and others criticized the ad- ministration of the Respondent Union at meetings ; the only specific instance that he recalled apparently was that described by Marovich and set forth above. King admitted that members frequently voiced criticism of the administration of the Respondent Union , its policies and procedures, both at meetings and at work. Early in September 1949 , King was transferred from the mechanical section to the maintenance department . Within a week thereafter, Gorham told Good- enough, according to the latter's credible testimony , that "he didn't favor that move because Mr. King had been retained outside of seniority . . . and that this move put 'him into a department where his seniority might protect him ; and that he felt that was unfair to the other employees with greater seniority." Goodenough suggested that before Gorham officially protested the transfer of King, Gorham should discuss the matter with the superintendent of the mechanical section . No grievance was ever filed by the Respondent Union in regard to King's transfer. Gorham testified that the only discussion in regard to King was "in connection with general layoffs , on the question of relative seniority, and things of that kind." f. Conclusions as to credibility Considering the record in its entirety, the undersigned is impelled to conclude that the testimony of Andersen is not entitled to credence for the following reasons: 1. The circumstances whereby Andersen allegedly overheard the conversa- tion between the Respondent Company's supervisors and the Respondent Union's representatives are, in the undersigned's opinion, implausible. That is, it seems highly unlikely that a conference held for the purpose of the Respondent Union's voicing its demands for the termination of the employment of four employees, who allegedly were critical of or opposed to it, at a time when no collective bargaining contract between the Respondents was in existence, would have been conducted in an office with a door open into the adjoining office of McAuliffe's secretary. Inasmuch as Andersen was not McAuliffe's regular secretary but was merely substituting in her stead in her absence, it is even more unlikely that a conference of such a nature would be held in a manner to enable a temporary secretary to overhear the remarks. On the other hand, the testimony of the witnesses for the Respondents with respect to the only meeting they all attended in McAuliffe's office in his absence during the latter half of 1949 is manifestly plausible. During the period the Respondents were negotiating for a new contract, certain provisions of the expired contract were still given effect, particularly seniority provisions," is The expired contract contained the following provisions in respect to seniority and reductions in force : In laying off employees consideration will be given to length of service as well as to qualifications for available work. In calling back employees on leave who were laid off for lack of work , the Employer shall give consideration to their qualifications for open jobs and their length of employment with the Employer. The Employer shall agree to cooperate in every way possible to retain the regular working force. When business conditions necessitate retrenchment in operations every effort will be made to distribute work in lieu of a reduction of the working force. When a layoff is neces- sary because of lack of work , twenty-four ( 24) hours' notice shall be given the employee of such layoff whenever practicable. WESTINGHOUSE ELECTRIC CORPORATION 543 and during the latter half of 1949, when the Respondent Company was retrenching its operations and personnel, the Respondents met frequently to discuss pending layoffs before they were actually effectuated. The purpose of the conference, according to the Respondents' witnesses, arose from the prospect of a, necessity for further reduction in the number of welders. The presence of the supervisors from various departments of the Respondent Company's plant in attendance at the meeting was necessary to discuss the problem and the various alternative solutions thereto. Upon the conclusion of the discussion in regard to the welders, the Respondent Union's representatives and certain supervisors left the meeting. Among those who remained, the discussion turned to a problem raised by Foreman Shields in respect to an additional reduction in force in his department. The version given by the Respondents' witnesses of die conference in question is manifestly plausible and logical. 2. Andersen set the date of the conference as occurring on September 9, 1949, a state holiday. The testimony of Buckingham and Gorham with respect to their activities that day is most persuasive and indicates that the conference could not have been held on that day. Gorham testified that it occurred on September 6, the day after Labor Day. Schwartz recalled that the meeting was held on the day he returned from his vacation, September 6. The testimony of Buckingham, Gorham, and Schwartz in this regard is convincing and is credited. 3. In her testimony, Andersen attributed to Gorham a statement "now that the contract is pretty well buttoned up," indicating that agreement had been reached by the Respondents on most of the important provisions of the contract prior to the conference in question. Later she testified that in the same meet- ing Goodenough said that Gorham "has been a pretty good boy when it came to signing this contract." Insofar as the statement attributed to Goodenough signified that the contract between the Respondents had been signed, Andersen's testimony has no basis in fact, for the Respondents at this time were in the process of negotiating the contract and did not execute it until October 10, 1949. Furthermore, the credible testimony of Goodenough and Gorham establishes that on September 6, 1949, the contract was by no means "buttoned up" for the parties had not yet reached agreement on several important provisions." Thus, the weight of the credible evidence refutes the testimony of Andersen in regard to the status of the contract then in the process of negotiation. 4. According to Andersen, Assistant Business Agent Gorham requested the Respondent Company "to get rid of" Marovich. Yet, the uncontroverted credible testimony establishes that immediately after Marovich's employment was termi- nated by the Respondent Company, Shop Steward Schwartz suggested that a grievance be filed by the Respondent Union in Marovich's behalf and the grievance was filed and processed by the Respondent Union. Furthermore, the Respondent Union thereafter referred Marovich to employment and attempted to reach him on another occasion to refer him to employment. Still later, Gor- ham inquired when Marovich would be available for employment. If Andersen's testimony is credited and it is found that the Respondent Union demanded that Marovich be released from the Respondent Company's employ and then imme- diately thereafter processed a grievance protesting such release and still later on several occasions sought to obtain employment for him, the Respondent Union 'r The. undersigned has considered the arguments of the General Counsel in regard to this issue but cannot agree that notes of the Respondent Company covering a bargain- ing conference held on September 19, 1949, corroborate Andersen's testimony that agree- ment had been reached on several important items. In the undersigned's opinion, the documents in question support the testimony of Goodenough and Gorham that agree- ment had not been reached. In addition, it is noteworthy that the terms and provisions of the new contract were substantially different from those of the expired agreement and negotiations for the new contract continued regularly for approximately 2 months. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was following an incredibly duplicitous course of action in respect to Marovich. The undersigned cannot reconcile Andersen's testimony in regard to Marovich with the Respondent Union's subsequent efforts in Marovich's behalf and cannot believe that the latter efforts were a Machiavellian subterfuge to conceal its illegal request for the termination of Marovich'A employment. The undersigned concludes that the Respondent Union's efforts in the cause of Marovich sub- sequent to his release effectively belie the testimony of Andersen in respect to the Respondent Union's demand for the termination of his employment 18 5. In addition, the record contains little probative evidence to sustain the complaint's allegation that the motivation for the Respondent Union's alleged illegal requests for the discharge of King, Pachorik, or Marovich arose from their expression of preference for the IWWU or criticism of the Respondent Union. The lack of evidence of such motivation gives reason to suspect the credibility of Andersen's testimony that the Respondent Union requested their discharge. None of these three was active in the IWWU. Although King and Marovich testified that they had voiced criticisms of the administration of the Respondent Union in meetings and on occasion disagreed with its officers, the record shows that they were not alone in expressing such criticisms, which, at most, appear to be customary conduct resulting from the application of democratic principles in any organization. King's disagreement with Gorham as to the interpretation of the vacation clause in the contract in effect during 1948 is insufficient, in the undersigned's opinion, to support an inference that such disagreement gave the Respondent Union reason to desire, a year later, the termination of King's employment with the Respondent Company. Although Marovich jest,;d with Schwartz in regard to the IWWU, Pachorik told Schwartz that the former in- tended to vote for the IWWU in the election, and after the election' Schwartz accused Pachorik of being a supporter of the IWWU, it is significant that in none of these conversations did Schwartz express any threat of retaliation by the Respondent Union. Furthermore, none of the three was expelled from membership or subjected to any official criticism or sanction by the Respondent Union for their alleged criticism of it or preference for the IWWU. Indeed, as pointed out above, the Respondent Union- rushed to the aid of Marovich upon his release from the Respondent Company's employ and processed a grievance "The General Counsel contends that certain aspects of the testimony in regard to -the release of Marovich lends credence to Andersen 's testimony . Admittedly, Marovich's immediate supervisors gave him no timely warning that his employment might be terminated due to the lack of quantity of his production and there is some conflict among the testimony of the Respondent Company's witnesses as to whether he was laid off tiecause of lack of work or released because of inability to meet production standards. Although these matters may give rise to some doubt as to the reasonableness of the action taken by the Respondent Company, the undersigned cannot agree with the General Counsel's contentions that they buttress Andersen 's testimony . The conflict in the testi- mony as to Marovich's discharge is more apparent than real ; actually, the testimony of the Respondent Company's witnesses is mutually reconcilable. As stated by McAuliffe in regard to the reasons for the release of Marovich and Ashton , "They were primarily terminated for their inability to meet production requirements . It was during a period, however, when work was very slow." It will be recalled also that , as stated above, Goodenough warned Shields , when the latter proposed to include Marovich and Ashton in the next reduction, in force, "I think you fellows should also bear in mind that when you go outside the seniority provisions, you must be certain that the employee is not capably performing his work, because in most of these cases , you can be assured that you will receive a grievance. You must be able to justify your decision." In view of these factors, as well as the obvious fact that not all witnesses were so precise in their testimony as Employment Supervisor Kelly in following the close distinctions between "layoff," "re- lease," and "discharge," as, these terms were administered by the personnel department, the undersigned is of the opinion that these aspects of the testimony of the Respondent Company's witnesses afford no support to Andersen 's testimony , which, in any event, is effectively controverted by the efforts of the Respondent Union on Marovich 's behalf subsequent to his release. WESTINGHOUSE ELECTRIC CORPORATION 545 in his behalf. In addition, it later referred him to job openings The under- signed concludes that the complaint's allegations in respect to the Respondent Union's motivation for its alleged attempt to cause the Respondent Company to discharge King, Pachorik, and Marovich has not been sustained by a pre- ponderance of the credible evidence and that this factor negates the credibility of Andersen's testimony in regard to the demands of the Respondent Union at the conference on September 6, 1949. 6. Another consideration is the fact, previously noted, that in view of her friendship with Scheuermann and 0111s, and the fact that the latter two had shortly before the hearing assisted in the building of a carport for Andersen, it cannot be said that Andersen was a completely disinterested witness. In addi- tion, although Andersen testified that she related to Scheuermann and OIlis the occurrences at the conference in question the same evening it occurred and thereafter discussed it with them, it is indeed curious that Andersen's knowledge of the conference was not brought to the attention of the General Counsel until the day on which she was called as a witness, despite the fact that an investi- gation by a field examiner of the Board had been conducted in respect to the original charge relating to the termination of Scheuermann's employment" This circumstance, considered in conjunction with the fact that in her usual work as a copy typist she assisted McAuliffe's regular secretary in the typing of termination papers, layoff lists, and seniority lists during the period the Respond- ent Company was curtailing production and personnel, might serve as the basis for an inference that with the use of the knowledge gained in her work, her account of the conference in question was a fictitious elaboration on an actual conference held on September 6, 1949. However, for the purpose of this Report, it is unnecessary to determine whether her account was actually fictitious or merely inaccurate. For the foregoing reasons and upon the entire record, the undersigned concludes that Andersen's testimony is not entitled to credence 2° The testimony of the Respondents' witnesses, as previously summarized, is credited.n g. Conclusions as to the complaint's allegations of unfair labor practices on the part of the Respondent Union in September 1949 Having found that Andersen's testimony is not entitled to credence, the under- signed concludes and finds that in September 1949, the Respondent Union did not attempt to cause the Respondent Company to discharge King, Pachorik, or 19 This observation is by no means intended to cast aspersion on the General Counsel or to infer that he was a party to any fabrication of testimony or collusive action. - 20 In reaching this conclusion as to Andersen 's credibility, the undersigned has con- sidered the facts in relation to Scheuermann's discharge, as hereinafter set forth. Con- versely, in weighing Scheuermann's testimony, the undersigned has considered the friend- ship among Scheuermann, Ollis, and Andersen, as well as the circumstances set forth in this paragraph of the text. n In reaching these conclusions as to the credibility of the witnesses , the undersigned has carefully considered the testimony of all witnesses and noted that there is some conflict in the testimony of the Respondents' witnesses as to the conference in question and as to other events . In the interest of brevity , a detailed summary of the testimony of each of the Respondents' witnesses has not been set forth. The undersigned is unable to agree with the General Counsel's contentions that the conflicts in the testimony of the Respond- ents' witnesses 'negate their credibility or buttress the testimony of Andersen. Their testimony on the chief issues raised by the conference is mutually reconcilable and in the undersigned's opinion the conflicts in their testimony are relatively minor and are of the type that is to be expected when some eight witnesses relate their independent recollection of the occurrences at a conference and other events occurring more than a year prior to the time they gave their testimony. Indeed, in the opinion of the undersigned, such variance among their testimony lends substantially more credence to their version of the conference and other events than would their complete agreement on every detail. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scheuermann and did not cause the Respondent Company to discharge Marovich because they had expressed a preference for the IWWU or criticized the Respond- ent Union and that accordingly the Respondent Union did not engage, in September 1949, in violations of Section 8 (b) (1) (A) or 8 (b) (2) of the Act, as alleged in the complaint. h. Conclusions as to the complaint's allegations of unfair labor practices on the part of the Respondent Company in regard to Marovich Having found that the Respondent Union did not request the Respondent Company to terminate the employment of Marovich and did not engage in any unfair labor practice with respect to Marovich, the undersigned concludes that the evidence does not sustain the complaint's allegations that "on or about Sep- tember 20, 1949, [the Respondent Company] discharged John Marovich pursuant to the request of the Union" in violation of Section 8 (a) (1) and (3) of the Act. B. The discharge of Scheuermann 1., Scheuermann's employment history ; his expulsion from membership in the Respondent Union Scheuermann entered the employ of the Respondent Company's predecessor in June 1941, and continued to work at the Sunnyvale plant after the Respondent Company assumed its operation. In 1941, he joined the Respondent Union's prede- cessor and was a member of the Respondent Union after it assumed jurisdiction in the Sunnyvale plant. As mentioned above, shortly before the expiration of the Respondents' closed- shop contract on April 1, 1949, Scheuermann was one of the organizers of the IWWU and became its president, and was active in its organizational campaign. On March 4, 1949, the Respondent Union notified Scheuermann that it had been charged that Scheuermann had violated the following provision of its con- stitution : Any member or members of any local lodge who attempt to inaugurate or encourage secession from the Grand Lodge or any local lodge, or who advo- cate, encourage, or attempt to inaugurate any dual labor movement, or who violate the provisions of the Constitution of the Grand Lodge, or the constitution for local lodges, shall, upon conviction thereof, be deemed guilty of conduct unbecoming,a member and subject to fine or expulsion, or both. On the same date, the Respondent Union notified Scheuermann that its trial committee would consider the charges against Scheuermann on March 8, 1949, and requested that he be present. At a meeting of the membership of the Re- spondent Union, apparently held about March 16, 1949, a report of the trial committee was submitted and the membership by secret ballot voted to expel Scheuermann from membership and fine him $500. By letter dated March 22, 1949, the Respondent Union notified Scheuermann of the action taken by it in this regard. On March 25, 1949, Scheuermann's attorney sent the Respondent Company the following letter, addressed to Goodenough's attention : This is to advise you that on or about March 23, 1949, three of your employees, Clyde Scheuermann, Thomas H. Mullen and Les Ollis were noti- fied by Local No. 504 International Association of Machinists that they have been found guilty of "dual unionism" on account of their activities in the form ition of the International Westinghouse Workers Union, a labor organization. WESTINGHOUSE ELECTRIC CORPORATION 547 We have reason to anticipate that demand may be presented to you for discharge or other disciplinary action against these employees , either under the closed shop contract of the union or on some other pretext. You are, of course, well aware of the National Labor Relations Board's rule, since confirmed by the courts, that activity in behalf of a rival union is privileged when it occurs at a time which is appropriate for the determina- tion by the Board of the question of representation. This doctrine is popu- larly referred to as the Rutland Court doctrine . Under the circumstances, we are confident that you are fully aware that the discharge of the afore- mentioned employees , either now or at some future time , because of their union activities would constitute an unfair labor practice. This letter, which is supplementary to previous notifications along the same line, is merely for the purpose of dispelling any possible questions which may have occurred to you concerning the rights and status of the employees concerned. On April 1, 1949, the Respondents' collective bargaining agreement , contain- ing closed-shop provisions, terminated. On May 12, 1949, the Respondent Union sent Scheuermann the following letter : Please be advised that we have been informed by General Secretary Treas- urer Eric Peterson that the $500.00 fine imposed against you by Lodge 504 has been approved by the Executive Council and that the Grand Lodge rec- ords have been indicated to show that you have been fined the sum of $500.00 and expelled from membership. 2. Attempts by Ollis to pay dues in spring and summer of 1949; Scheuermann's payment and remission of dues Ollis testified that in March 1949, after his expulsion from membership in the Respondent Union but before the termination of the Respondents ' contract on April 1, 1949, he offered to pay to Steward Elmer Smiley 2 months' dues in the Respondent Union thru March 31, 1949, the expiration date of the contract. According to Ollis, the following colloquy ensued : .. he told me I would be a damned fool to pay them because I had been expelled. I told him, regardless , that they had the contract, then, I wanted to pay dues as long as they had the contract , so he gave me a receipt for the money and said I was still being foolish , but he took them. That was the last time he took dues from me. Ollis further testified that on three or four other occasions in the spring and summer of 1949, he offered to pay dues in the Respondent Union to Smiley but Smiley refused to accept them. According to Ollis, on one of these occasions he offered to pay initiation fees. Smiley, on the other hand, insisted that on only one occasion did Ollis offer to pay dues. This incident occurred about a month after Ollis was expelled from membership in the Respondent Union and fined . When Ollis offered the dues, Smiley, according to his testimony , told Ollis, "There is no use me taking any of your dues. They will send it back." Smiley testified, in addition, that the reason he refused Ollis' offer of dues was Smiley's belief that "the by-laws of our Union says that no member don 't have to pay dues-if you are not a mem- ber you don 't have to pay dues, so why should I collect dues if they are not a member?" Smiley denied that Ollis at any other time offered to pay or talked about paying dues. Ollis did not impress the undersigned as a reliable witness. As the record shows, he was belligerent and evasive (particularly as to the tender of dues in 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the spring and summer following the March incident ); and, in the opinion of the undersigned, purposely slanted his testimony in an effort to bolster Scheuer- mann's case. As between Ollis and Smiley, the latter impressed the undersigned as the more credible witness. In view of these considerations , as well as the fact found below that Smiley refused an offer of dues by Scheuermann in March 1949, the undersigned does not credit Ollis' testimony as to his payment of dues in ,March 1949 or his offer of dues and initiation fees on three or four occasions later in the spring and summer of 1949. Scheuermann testified that in late March he offered to pay to Steward Smiley 1 month's dues but that Smiley refused to accept them , saying, "I can't take dues from you. I have been told not to ." Smiley was not questioned specifically with regard to this incident. However, Gorham testified that he never instructed any shop steward not to accept dues from Scheuermann . In view of the fact that records of the Respondent Union show that Scheuermann customarily paid his dues to Smiley, as well as Smiley's credited testimony set forth above in rela- tion to the incident with Ollis , the undersigned finds that in March 1949, Scheuer- mann offered to pay dues to Smiley but Smiley refused to accept them. A little later, Scheuermann offered to pay the dues to Steward Louis Nunez, who accepted them and remitted them to the Union. It appears from a letter, set forth below, that thereafter Scheuermann submitted to the Respondent Union's office two additional payments for monthly dues. Records of the Re- spondent Union show that in March 1949 , Scheuermann paid his dues to Nunez for the month of January and in May he paid his dues, through the Respondent Union's office, for the month of February. On June 3, 1949, the Respondent Union wrote Scheuermann the following let- ter and returned his last three payments of dues : Enclosed you will find your money order for $2.00 which was recently sent to Local 504. Also a money order for $4.00, $2.00 of which was sent in the last of March and $2.00 the first of May. As you know, in accordance with the Constitution , the members of Lodge 504 voted to expel you on March 16 , 1949. The General Secretary Treasurer of the International Association of Machinists advised Lodge 504 in a letter dated April 28, 1949 that the Executive Council of the International Asso- ciation of Machinists had concurred with the action of Lodge 504 in expel- ling you and fining you the sum of $500.00 for violation of the Constitution of the International Association of Machinists . You are, therefore, not a member of the International Association of Machinists and we cannot accept dues from you. rj - 3. The elections ; execution of the Respondents ' contract Pursuant to the Board's Decision and Direction of Elections, elections in three voting groups were conducted among the Respondent Company's employees on July 7, 1949, the IWWU being on the ballot in each of the voting groups. The Respondent Union won the election in its voting group and was certified by the Board on July 19, 1949. Within a short time after the election , the IWWU disbanded . In August 1949, the Respondents commenced negotiations for a new collective bargaining contract. On August 25, 1949, a union-shop author- ization election was conducted under the direction of the Regional Director among the employees in the bargaining unit for which the Respondent Union was the statutory representative. A certification of the results of the election showing that a majority of the eligible voters had voted to authorize a union -security agreement was issued on September 7, 1949. Negotiations for a contract con- tinued between the Respondents, culminating in agreement among the nego- WESTINGHOUSE ELECTRIC CORPORATION 549 tiators as to the terms thereof in late September 1949, subject to ratification by the membership of the Respondent Union. On October 9, 1949, a Sunday, a special membership meeting, widely publicized by notices to members and notices posted on bulletin boards in the plant, was held to consider the terms of the pro- posed contract. The membership voted to ratify the contract and on October 10, 1949, the Respondents formally executed it. The agreement contained the following provision in respect to union security: All employees in the bargaining unit described in Section I shall, on and after the thirtieth day following the beginning of their employment, or October 10, 1949, whichever is the later, become and remain members of the Union, as a condition of their employment, during the life of this Agreement, and the Union shall notify the Company promptly in writing of the failure of any such employee to become or remain a member of the Union; provided, however, that the Union shall not request the Company to discrim- inate against any employee for non-membership in the Union if such member- ship is not available to the employee on the same terms and conditions gen- erally applicable to other members, or if membership is denied or terminated for reasons other than the failure of the employee to tender the periodic dues or initation fees uniformly required by the Union as a condition of acquiring or maintaining membership. Although copies of the contracts were not posted, copies were given imme- diately to all supervisors of the Respondent Company and to all stewards of the Respondent Union. Scheuermann, as well as Ollis, denied that they were aware of the union- shop provisions of the contract. Upon the entire record, the undersigned is unable to credit their testimony in this regard. Admittedly, Scheuermann was aware of the coutracx negotiations between the Respondents, of the conduct of the union-shop authorization election, and of the certification of the Respondent Union as a result thereof. Indeed, he testified that although he did not partici- pate in the union-shop authorization election, he would have voted for a union shop, realizing that if provisions therefor were included in a contract, he would be required to be a member of the Respondent Union. He also testified that throughout the 8 years he was employed at the Sunnyvale plant, the Respondent Union or its predecessor held closed-shop contracts until the expiration of the last contract on April 1, 1949. About a week after the union-shop authorization election, Leaderman Emil Tonascia asked Scheuermann, "Now that the . . . shop has won the union election, what effect will that have upon you?" Scheuermann replied, according to Tonascia's credible testimony, "None whatever. The Taft-Hartley law pro- tects me." 2a The record also discloses that the special meeting of the Respondent Union held on October 9, 1949, to ratify the proposed contract was widely publicized by posted notices at the plant and was discussed at work by employees. Scheuer- mann admitted that he knew that the special meeting of the Respondent Union was being held on October 9 and that he was aware of the purpose of the meet- ing. In addition, after the execution of the contract and about 2 weeks prior to Scheuermann's discharge, Shop Steward Nunez and Scheuermann discussed various terms of the contract, including its seniority, job classification, dues za Scheuermann did not specifically deny the testimony of Tonascia, although Scheuer- mann denied generally that he had any conversations with Tonascia or other employees in regard to the union-security provisions of the contract. Upon the entire record and his observation of the witnesses, the undersigned credits Tonascia's testimony and finds Scheuermann's general denial unentitled to credence. 974176-52-vol. 96-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checkoff, and union-security provisions.28 In view of these considerations, as well as the fact that inherent in Scheuermann's and Ollis' testimony in respect to an attempt by Ollis to pay dues to Steward Smiley in October 1949, discussed below, is the knowledge on their part of the union-security provisions of the con- tract, the undersigned does not credit their denials that they had no knowledge of the union-security provisions but finds upon the entire record that they were aware of such provisions. 4. Ollis' attempt to pay dues in October 1949 Ollis testified that "in the last week or so" before his employment with the Respondent Compafiy was terminated on October 17, 1949, employees in con- versations frequently referred to him as a "free rider," and that on one occasion in a discussion with other employees in the locker room between October 10 and 17, 1949, when they called him a "free rider" in the presence of S'cheuermann, Steward Smiley, and employees Henry Groth and Malcolm Nelson, the following occurred: I offered to pay dues to Smiley at that time and I offered, I believe I phrased it that we were willing to pay dues at any time, or possibly I said I am willing to pay dues, but I recall very definitely Smiley saying, as he had said before, "You know, we don't want any dues from you guys." .. . Scheuermann's version of the incident in the locker room was as follows: There was an incident of kidding about "free riders." It perturbed Ollie and he said, "How about it, Smiley? How about taking some dues now?" Smiley said, You know I can't take dues from you guys. There was some more bantering and that was the end of it. Nelson corroborated the testimony of Olliis and Scheuermann in that he recalled the incident having occurred when Ollis offered to pay dues but Smiley refused to accept them ; however, he could not recall the conversation of the participants. Smiley specifically denied that Ollis ever offered to pay dues in the locker room, and Groth testified that he could remember no such incident, although the latter recalled that Scheuermann and Ollis were jestingly referred to as "free riders." Nelson and Groth were more nearly disinterested witnesses than the others testifying to this incident. From his observation of the witnesses, the under- signed finds, upon the testimony of Nelson, Scheuermann, and Ollis, that between October 10 and 17, 1949, in a bantering conversation in the locker, room and, after being called a "free rider," Ollis offered, in Scheuermann's presence, to pay dues to Smiley, but Smiley refused to accept them. Smiley's denial is not credited. In connection with collection of dues, it might be noted that at the time in question stewards, as a convenience to members, took dues when offered and remitted them to the Respondent Union's office. It appears that applications for membership and payments of initiation fees were customarily handled by the Respondent Union's office and not by the stewards. 5. The discharge of Scheuermann On November 11, 1949, Gorham submitted the following letter to Goodenough at the beginning of a conference on a grievance: 23 This finding is based upon the credible testimony of Nunez. Scheuermann did not specifically deny the testimony of Nunez. Scheuermann denied generally that he talked with any employees in regard to the union-security provisions of the contract. For the reasons heretofore stated, Scheuermann's general denial is not credited. r z WESTINGHOUSE ELECTRIC CORPORATION 551 We are requesting Westinghouse Electric Corporation, Sunnyvale plant, to terminate the employment of Louis G. Gennai, Cleveland A. Norris and Clyde W. Scheuermann for failure to comply with Section 2 of the Agree- ment between Westinghouse Electric Corporation, Sunnyvale plant, and District Lodge #93, International Association of Machinists.' Goodenough asked Gorham whether the individuals named in the letter "had been given the same opportunity to join the union as all other individuals under the jurisdiction of the I. A. M.," whether the request for the termination of employment of the three employees was in compliance with the union-security provisions of the Respondents' contract, and whether Gorham believed that the request for the terminations of employment was in compliance with the Act. Gorham replied in the affirmative to each of these questions. Goodenough then requested that Gorham submit a statement in writing that the three employees whose discharge was requested had been given the same opportunity as other employees to join the Respondent Union. When Scheuermann reported to work on the second shift on the afternoon of November 11, 1949, he was sent to Superintendent McAuliffe. The latter read him the Respondent Union's request for his discharge, set forth above, and then gave it to Scheuermann to read. McAuliffe read the union-security provisions of the contract to Scheuermann and gave him the contract to read. Scheuermann pro- tested, "Yes, but I don't think this applies to me . . . because I feel mine is a special case." In addition, Scheuermann stated that he believed himself unable to comply with the union-security provisions of the contract because "You know of the election and the fact that I was fined and expelled." According to Scheuer- mann, McAuliffe stated that he had discussed the matter with Goodenough and "was of the opinion that it just wasn't quite right." Nevertheless, Goodenough assured McAuliffe-that he had asked Gorham "the three necessary questions and as far as he was concerned, why, they were going to abide by the agreement." McAuliffe then said, "I don't think they can make it stick, do you?" Scheuermann concurred, and asked "Well, what do you expect me to do?" McAuliffe replied, "Well, they have asked me to terminate you and we are going to go through with it," and gave Scheuermann his termination papers On Monday, November 14, 1949, Scheuermann went to the Board's Regional Office in San Francisco and consulted a field examiner. Later that day, he stopped at the Respondent Union's office in San Jose and asked a clerk for an application for a membership card, which was supplied him. When he had filled it out and submitted it to the clerk, the latter examined some files and then went 24 The Respondent Union, later on November 11, 1949, deleted Gennat' s name from. the letter when it was discovered that he had made arrangements to pay his initiation fees to a steward but had been unable to do so because of the steward 's illness. 25 The findings in this paragraph are based principally upon the credible testimony of Goodenough. In compliance with Goodenough's request, Gorham submitted the following letter dated November 15, 1949 : In answer to your question regarding my letter to you of November 11, 1949, please be advised that all of those listed in this letter for termination were-given the slime opportunity to become members of our organization as anyone else working in your plant at Sunnyvale. 2e The findings in this paragraph of the text are based upon the testimony of Scheuer- mann. McAuliffe's version of the conversation varied substantially from that of Scheuer- mann and McAuliffe specifically denied most of the remarks attributed to him by Scheuermann and also denied that Scheuermann mentioned that he had been fined and expelled from the Respondent Union The probabilities of the situation favor Scheuer- mann's version of the colloquy. Although the matter is not free from doubt, Scheuermann's version is credited. '552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into Business Agent Earl Scott's office. The clerk returned, discarded Seheuer- mann's application, and told him that Scott wished to see him. 'According to Scheuermann , he had "the following conversation with Scott I told him I was out to try to ... see what we could do about my being laid off at Westinghouse, and he said ... "Yes, Clyde, I think we can do something. You pay your back dues and your, new initiation fee and the $500 fine-" he added that, and I kind of smiled at that, and I said, "Oh, yeah?" I didn't even express it beyond that point and he said, "Well, I will tell you Clyde, I don't know anything, about the case. I haven't been following it. Frank [Gorham] has been handling that." And he said, "I will make an an appointment with him," and I said, "Well, all right." And I said, "What- ever time you say will be all right," so he made it for 10 o'clock the next morning.'? Later in the afternoon of November 14, 1949, Scheuermann went to the Re- spondent Company's plant and consulted Goodenough. He informed Good- enough of his visit to the Board's office, of his conversation with Scott, and of his appointment with Gorham the following day. Scheuermann asked Good- enough whether "there wasn't something that could be readily fixed up between us rather than to have it go this far." Goodenough replied that in his opinion the Respondent Company had complied with the union-security provision of its contract with the Respondent Union and "didn't see that any change could be made." Scheuermann disclaimed any knowledge of the union-security pro- visions of the contract and explained his expulsion from membership in the Respondent Union to Goodenough. The latter suggested that- Scheuermann inform him of the outcome of his appointment with Gorham the following day.28 On November 15, 1949, Scheuermann kept his appointment with Gorham and asked to "make application to abide by the union shop." Gorham replied that he could not take Scheuermann's application inasmuch as he was unemployed. In this regard, Gorham testified that in periods when employment is curtailed and no jobs are available, the policy of the Respondent Union forbade him from tak- ing "applications from people who are not employed." 29 Shortly thereafter on November 15, 1949, Scheuermann reported the outcome of his interview with Gorham to Goodenough. Scheuermann inquired whether there was any criticism of his work performance and Goodenough replied that there was none. Upon his request, Scheuermann was given a copy of the Re- spondents' contract. 6. Conclusions as to the termination of Scheuermann's employment To recapitulate the facts as to Scheuermann, it has been found that be was a member in good standing of the Respondent Union for a number of years. In 27 Pursuant to arrangement made during the course of the hearing , Scott's testimony was taken by deposition on September 25, 1950. Therein , Scott denied that he told Scheuermann that the latter's problem might be solved if he paid his back dues, reinstate- ment fee, and the $500 fine. According to Scott, he told Scheuermann that the'latter "would have to see Mr. Gorham. Mr. Gorham had been assigned to take care of Lodge 504 and I never injected myself into those matters on reinstatements or initiations, things like that. I never handle that," and that an appointment could be made with Gorham. Although the matter is not free from doubt, the undersigned believes that on the record, Scheuermann's version of the colloquy is more accurate than Scott's inasmuch as the latter's testimony on cross-examination as to other incidents regarding Scheuermann appear to be somewhat vague, if not evasive. Accordingly , Scheuermann's testimony, set forth in the text, is credited. 28 The findings in this paragraph are based upon the mutually reconcilable testimony of Goodenough and Scheuermann. 29 The findings in this paragraph are based upon the mutually reconcilable testimony of Scheuermann and Gorham. WESTINGHOUSE ELECTRIC CORPORATION 553 'early 1949, he became one of the organizers of the IWWU and its first presi- dent but continued to maintain his membership in the Respondent Union. On March 22, 1949, the Respondent Union notified him that on March 16, 1949, he had been expelled from membership and fined $500 for dual unionism. On March 25, 1949, Scheuermann's attorney advised the Respondent Company by letter of the fact that Scheuermann and two other employees had "been found guilty [by the Respondent Union] of `dual unionism' on account of their activi- ties in the formation" of the IWWU and warned the Respondent Company that "the discharge of the aforementioned employees, either now or at some future time, because of their union activities would constitute an unfair labor practice." On April 1, 1949, the Respondents' closed-shop contract expired. On May 12, 1949, the Respondent Union informed Scheuermann that its executive council had approved the action taken by the Respondent Union in regard to Scheuer- mann. In March and May, after his expulsion from membership, Scheuermann submitted to the Respondent Union his dues for the months of January and February and, apparently in late May or early June, mailed it his dues for the month of March. On June l 1949, the Respondent Union returned these three payments of dues, stating, "You are . . . not a member of the International Association of Machinists and we cannot accept dues from you." From April 1, 1949, until October 10, 1949, there was no collective bargaining contract between the Respondents, and during that period employees were free to become and/or remain members of the Respondent Union or to refrain from becoming and/or remaining members. On October 10, 1949, the Respondents executed a valid contract requiring as a condition of employment that employees then in the Respondent Company's employ should become and remain members of the Respondent Union "on and after the thirtieth day following" the date of the contract's execution. It has been found that Scheuermann had knowl- edge of the contract and its union-security provisions. On an occasion between October 10 and 17, 1949, he was present when Ollis expressed to Steward Smiley a willingness to pay dues but Smiley refused to accept dues from Ollis. On November 11, 1949, the-thirty-second day after the execution of the contract, the Respondent Union requested that the Respondent Company discharge Scheuermann for failure to comply with their contract's union-security provi- sions. On that date, the Respondent Company acceded to the Respondent Union's request and discharged Scheuermann. The issues arising from Scheuermann's discharge, as framed by the pleadings and the contentions of the parties, are based upon those provisions of Section 8 (a) (3) and 8 (b) (2) of the Act banning discrimination against an employee subject to a union-shop contract if his "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 retain- ing membership." 80 The first question posed by the facts of the instant case is whether an em- ployee who was expelled from membership in a labor organization on charges of dual unionism at,a-fime when that organization' held a closed-shop contract -: with the employer may, thereafter (8 months later) be discharged for failure 90 The complaint does not allege , and apparently the General Counsel does not contend, that Scheuermann's discharge fell within the proscription of proviso A to Section 8 (a) (3) of the Act ; namely that membership in the Respondent Union was not available to him "on the same terms and conditions generally applicable to other members." Accordingly, the undersigned deems it unnecessary for the purposes of this Report to consider Scheuermann's discharge in relation to such proviso, except to note that if this were an issue in the case, the undersigned's conclusions in that regard would be those briefly noted in footnote 40, infra. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to comply with the union-security provisions of a succeeding contract between the employer and the labor organization . A strict construction of the words of the Act would indicate that Scheuermann 's expulsion from membership in the Respondent Union on charges of dual unionism in March 1949 , and subsequent discharge in November 1949, for failure to comply with the union -security pro- visions of the Respondents' contract, executed in October 1940, would fall within the interdiction of the Act, inasmuch as it would appear that Scheuermann's "membership was . . . terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly re- quired as a condition of . . . retaining membership ." However, an exami- nation of the congressional history and enunciated Board policy in respect to the sections of the Act under discussion, reveal that to be violative of the Act the termination of the employee's membership in a labor organization referred to therein and his subsequent discharge must both occur within a period of time covered by a current contract. Thus, the report of the' Senate Committee on Labor and Public Welfare states the following : Under the amendments which the committee recommends , employers would still be permitted to enter into agreements requiring all the employees in a given bargaining unit to become members 30 days after being hired if a, majority of -such employees have shown their intent by secret ballot to confer authority to negotiate such an agreement upon their representatives. But in order to safeguard the rights of employees after such a contract has been entered into, three additional safeguards are provided : ( 1) Member- ship in the union must be available to an employee on the same terms and conditions generally applicable to other members; (2) expulsion from a union cannot be a ground of compulsory discharge if the worker is not delinquent in paying his initiation fee or dues . . . . It seems to us that these amendments remedy the most serious abuses of compulsory union membership and yet give employers and unions who feel that such agree- ments promoted stability by eliminating "free riders" the right to continue such arrangements. [Emphasis supplied.]" That an employee's expulsion from membership in a labor organization for reasons other than nonpayment of dues and initiation fees and subsequent dis- charge must both occur during the term of a contract to be violative of the Act appears to have been the conclusion of the Board in the Pen and Pencil Workers case." There-an employee, subject to a contract containing union-security pro- visions and expiring in 1948, was fined by the union in 1947, expelled from membership for failure to pay the fines, and discharged in 1947 upon the request of the union pursuant to the contract. In 1948, after the execution of a new and valid union-shop contract, the employee was rehired, tendered her initiation fee and dues to the union, but refused to pay the outstanding fines. The union rejected her tender of initiation fee and dues upon her refusal to pay the fines and requested the employer to discharge her. The employer complied with the union's request. The Board held that the union had violated Section 8 (b) (2) by causing the employer to discriminate against the employee by insisting upon payment of the fines and rejecting her tender of dues and initiation fee, the meaning of which terms the Board held not to embrace the fines. Inferentially, it appears that the Board did not consider the employee's expulsion from membership in the union under the prior contract to mean a " Sen. Rep. 105, 80th Cong., p. 7. See also, statements of proponents of the Act in debate, 93 Cong. Rec. A8141, 4317-8, 4401. "Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883. WESTINGHOUSE ELECTRIC CORPORATION 555 denial or termination of membership in the union at a subsequent time when the employee became subject to the terms of a later union-shop contract. Indeed, to hold to the,contrary would contravene the clearly expressed intent of the Congress to protect labor organizations by the provisos to Section 8 (a) (3) against "free riders"" and, as succinctly stated in the Respondent Company's brief, would enable employees subject to a union-shop contract to "violate their duties as members [of the contracting union] and force the Union to expel them and thereby enter at will into a privileged class, perpetually immune from union security provisions and from any obligation of tendering dues or fees, and they could remain in that privileged category despite successive contracts which would otherwise impose new conditions of employment upon them in that regard." In view of these considerations, the undersigned finds that the fact that Scheuer- mann was expelled from membership in the Respondent Union for dual unionism in March 1949, near the end of the closed-shop contract, does not, in itself, make his discharge, subsequently effected under the terms of a later union-shop con- tract, discriminatory. The second question to determine is whether it was necessary for Scheuermann to tender an initiation fee and dues in order to comply with the 1949 contract's union-security provisions,, of which it has been found Scheuermann had knowl- edge. The General Counsel contends that "if the employee whose membership has been terminated continues in employment past his expulsion up to the time of a new union security contract, all that can be required under the new con- tract is resumption of payment of dues as a condition for his reacquiring mem- bership. Otherwise the union could exact fines from dual unionists in the form of a new initiation fee." Although the matter is not free from doubt, the under- signed is of the opinion that the argument of the General Counsel must be re- jected and that the clear inference of the Board's decision in the Pen and Pencil Workers case is to the effect that Scheuermann was under the duty to tender both initiation fees and dues in order to comply with the contract. The fact that Scheuermann's tenure of employment with the Respondent Company remained unbroken following his expulsion from membership in the respondent Union in March 1949, until the Respondent Union's request for his discharge in No- vember 1949, for noncompliance with the union-security clause of the 1949 contract is not, in the undersigned's opinion, sufficient to distinguish the instant proceeding from the Pen and Pencil Workers case, in which there was a break in the period of the employee's employment between the date of expulsion from membership under one contract and the execution of the second. In each in- stance, the employees were in the same position following their expulsion from the contracting union ; each was a new employee for the purpose of compliance with the union-security provisions of the new contract and as to each of them, but for the contracting union's expulsion from membership, they would not have been under the necessity of tendering a new initiation fee. Since it is uncontro- verted that Scheuermann failed to tender an initiation fee within the time pre- scribed by the 1949 contract, the undersigned finds that in effectuating his dis- charge, neither of the Respondents violated the Act. On the other hand, assuming arguendo, in accordance with the General Counsel's contention, that the only duty required of Scheuermann "under the new contract is resumption of payment of dues as a condition for his reacquiring membership," it is clear that the evidence fails to sustain the General Counsel's contentions and argument in this regard. The General Counsel argues that since the Respondent Union on June 3, 1949, returned 3 months' dues submitted by 83 See Union Starch & Refining Company, 87 NLRB 779, for a discussion of this factor. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scheuermann following his expulsion from membership with the statement "you are, therefore, not a member of the International Association of Machinists and we cannot accept dues from you," the Respondent Union under general principles of contract law "was impliedly obligated to make known to Scheuermann that it would let bygones be bygones and would accept his tender." [Emphasis sup- plied.] In support of his argument, the General Counsel cites the following proposition : Where an act to be done by one party can be done only on a corresponding act being done or allowed by the other party, an obligation by the latter to do or to allow to be done the act or things necessary for the completion of the contract will be necessarily implied." The General Counsel also relies upon the following principle : Inasmuch as the "law neither does nor requires idle acts," a strict and for- mal tender is not necessary . . . where it is reasonably certain that a tender will be refused if made.35 In support of his argument, the General Counsel contends that Steward Smiley's refusal to accept Ollis' tender of dues between October 10 and 17, made in Scheuermann's presence, demonstrated the futility of a tender of dues on the part of Scheuermann. The undersigned is of the opinion that the General Counsel's argument in this regard is without merit because it is based upon the false premise that the Respondent Union was obligated to accept the tender of Ollis' dues and, more generally, to admit to membership any applicant subject to the terms of its contract with the Respondent Company. The terms of the Act do not require the union holding a union-shop contract to accept all applicants for membership and this fact Was clearly recognized by the proponents of the Act in the Congress38 And the Board has held that proviso B of Section 8 (a) (3) extends "protection to any employee who tenders periodic dues and initiation fees without being accorded membership 87 Thus, in order to comply with the union-security provisions of the Respondents' contract, employees who were not members of the Respondent Union were under a duty to tender dues and initiation fees within the prescribed time. Upon re- ceipt of such a tender, the Respondent Union acquired a privilege of either ac- cepting or rejecting the tender. 33 In the event an employee's tender of dues and initiation fees was rejected, he acquired a right under the Act that the Re- spondent Union should not demand his discharge and the Respondent Union was under a corresponding duty not to request his discharge. Therefore, if these principles are applied to the incident when Steward Smiley rejected Ollis' tender of dues in Scheuermann's presence, the undersigned cannot agree with the General Counsel's argument, even accepting the theory that Ollis or Scheuermann was obliged only to tender dues in order to comply with the Respondents' union-shop contract, that Scheuermann's obligation to tender dues was thereby extinguished. Upon Ollis' tender of dues and their rejection u 17 Corpus Juris Secundum 910. n 24 Cal Jur. 513. 3e 93 Cong. Rec. 4400, A3141. 37 Union Starch & Refining Company, 87 NLRB 779; 784. - 88 For the purpose of this Report, it is unnecessary to analyze any additional rights,or privileges of the Respondent Union; e. g. whether,it had a privilege of accepting the dues tendered without extending membership to the employee making the tender. See Senator Taft's statement, 93 Cong. Ree. 5088, 5089. WESTINGHOUSE ELECTRIC CORPORATION 557 by the Respondent Union," he acquired a right that the Respondent Union should not request his discharge and the Respondent Union assumed a duty that it should not request his termination of employment. This duty in respect to Ollis, the Respondent Union observed. Whether Scheuermann was present or, far removed at the time of the incident, Ollis' tender did not encompass- a tender on the part of Scheuermann and the latter made no effort to comply with his duty to tender dues. He did nothing to fulfill his duty to comply with the union- security provisions of the Respondent's contract and to acquire the protection of proviso B of Section 8 (a) (3).90 Accordingly, the undersigned finds that,neither of the Respondents has engaged in violations of the Act as alleged in the com- plaint in respect to the discharge of Scheuermann. In view of the foregoing conclusions, the undersigned finds that the evidence warrants no finding that the Respondent Company committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) or that the Respond- ent Union has engaged in violations of Section 8 (b) (1) (A) or 8 (b) (2) of the Act. It will therefore be recommended that the complaint be dismissed in its entirety. On the basis of the foregoing and upon the entire record in the case, the under- signed makes the following : CONCLUSIONS OF LAW 1. Westinghouse Electric Corporation (Sunnyvale Plant) is engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. 2. International Association of Machinists, Local No. 504, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. - 3. Neither Westinghouse Electric Corporation (Sunnyvale Plant) nor Inter- national Association of Machinists, Local No. 504, has engaged in any, of the unfair labor practices alleged in the complaint. 30 For the purpose of discussion , it will be assumed that Smiley's rejection of Ollis' dues was within the scope of his authority as an agent of the Respondent Union, and that such action by Smiley was attributable to it. The matter is not free from doubt, however , in view of the requirement of the Respondent Union's constitution that applications for membership be accepted or rejected by vote of the membership body, as well as the fact that no official of the Respondent Union had authority to reject applications for membership and that Smiley's rejection of Ollis' tender of dues was based not upon instruction of the Respondent Union but upon Smiley 's belief "if you are not a member you don't have to pay dues, so why should I collect dues if they are not a member I" 40 The fact that in June 1949 the Respondent Union returned to Scheuermann 3 months' dues submitted by him after his expulsion from the Respondent Union in March 1949, can in no way mitigate Scheuermann 's duty to tender dues and initiation fees to comply with the union-shop provisions of the contract executed by the Respondents in October 1949. Nor does the Respondent Union's refusal , subsequent to Scheuermann's discharge, to accept his application for membership affect the conclusions reached bprpin. Since Scheuermann had failed to acquire the protection of the Act by complying with the union-shop provisions of the contract within the proscribed time , the Respondent Union was free to take any action it wished upon any offers or tenders of Scheuermann after his discharge. Nor do the provisions of the constitution and bylaws of the Respondent Union that reinstatement of expelled members may not be effected until payment of out- standing fines lend any support to the General Counsel's contentions inasmuch as Gorham testified credibly that such provisions may be, waived by the Respondent Union. More- over, upon the record in the instant proceeding, it would be , as the Respondent Union states in its brief, "nothing but idle speculation at its best or a downright perversion of the facts and motives obviously involved in this case , to conclude either ( 1) that the Union would have refused to admit Scheuermann to membership on the same terms and conditions generally applicable to other members, if he had made a tender of his initiation fee within the'proper time period, or (2) that the Union would have requested his discharge if he had made a tender , and the Union had rejected it." 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommendations Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case , the undersigned hereby recommends that the com- plaint herein be dismissed in its entirety. F. BURKART MANUFACTURING COMPANY and INTERNATIONAL ASSOCIA- TION OF MACHINISTS , A. F. L. Case No. 14-CA-576. September 28, 1951 Decision and Order On June 13, 1951, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Boards has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner 2 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against F. Burkart Manufacturing Company, Cairo, Illinois, be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Upon an amended charge filed February 26, 1951,* by International Association of Machinists, A. F. L., the General Counsel of the National Labor Relations Board, ' 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 three-member panel [ Chairman Herzog and Members Houston and Reynolds]. z Because the Act restricts only the power of the Board to certify a nonguard union for guards and places no restriction on the right of guards to join nonguard unions, we do not adopt the Trial Examiner's finding that "as a guard or watchman Boerschel was not privileged to become a member of the union represented by Rushing nor of the Upholsterers' International Union of North America, AFL." Nor do we adopt the Trial Examiner's finding that Rushing testified credibly that the IAM "was the bargaining agent in the plant at that particular time." * Original charge filed December 5, 1950. 96 NLRB No. 70.