Monsanto Chemical Co.

MONSANTO CHEMICAL COMPANY 517 MONSANTO CHEMICAL COMPANY and GEORGE W. DRAPER INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL No. 16, A. F. L. and GEORGE W. DRAPER. Cases Nos. 14-CA-351 and 14-CB-5°. December 13,1951 • Decision and Order On June 14, 1951, Trial Examiner Charles W..$chneider issued his Intermediate Report in this consolidated case, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent Company, the Respondent Union, and the General Counsel filed ex- ceptions to the Intermediate Report, together with supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they are consistent with our findings, conclusions, and order herein set forth. The Trial Examiner found, and we agree, that the Respondent Company discharged Henry McClellan, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Respondent Union caused that discharge and thereby violated. Section 8 (b) (2) and 8 (b) (1) (A) of the Act. The critical facts in this case, as more fully related in the Inter- mediate Report, are undisputed : Henry McClellan had been a member in good standing of the Respondent Union for several years prior to September 9, 1948. On that date he sent a letter to the Union in which he stated, "Please except [sic] this letter as my resignation from Local 16, effective October 15, as of the ending of the contract year." On October 8, 1948, McClellan and two other employees wrote the Company asking that their checkoff of union dues be discontinued as of October 15, 1948. The Company-before receiving the October 8 letter-had already deducted McClellan's dues and paid them to the Union. Beginning with November 1948, for the months of November and December 1948, and January, February, March, and April, 1949, the Company continued to check off McClellan's dues but held the money in escrow. The Union, disregarding McClellan's letter of September 9, sub- mitted to the Company 'on January 17, 1949, a list of members-- 97 NLRB No. 77. 986209-r2-vol 97-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including McClellan-and on January 25, 1949, asked for "proper action" with respect to a group, of alleged delinquent members- again including McClellan. On February 16, 1949, the Union again sent the Company a list of members in arrears and requested the Company, in accordance with its agreement with the latter, to dis- charge those who did not pay up such obligations by March 1, 1949. McClellan's name was also on this latest list. A dispute developed at this point between the Company and the Union as to whether under the contract the Company was required to discharge McClellan and the others. The contract,' effective Octo- ber 15, 1948, terminating October 15, 1949, contained the following union-security provision : All employees who, on the effective date of this agreement, are members in good standing, in accordance with the Constitution and By-Laws of the Union, and all employees who thereafter become members, shall, as a condition of employment, remain members of the union in good standing for the duration of this agreement. The foregoing clause shall go into effect at such time as the National Labor Relations Board shall hold a referendum among employees and shall certify authorization to make an agreement requiring union membership as a condition of employment. Although the Union filed a petition for a union-security election on October 15, 1948, the date this latest agreement was executed, it was not until January 7, 1949, that an election was held, and it was not until January 10, 1949, that the Union was certified as authorized to enter into a union-security agreement with the Company? As already indicated, early in March 1949, the Company and the Union were in disagreement as to whether, under the union-security provision quoted above, the Company was required to discharge McClellan and the others. At a meeting h6ld on March 4, 1949, the Company and the Union agreed to submit that question to arbitration pursuant to an arbitration clause contained in the agreement. The arbitration hearing was held on April 22 and 23, 1949. McClellan and his attorney were present and participated, and had initially signed a submission agreement agreeing to be bound by the award. It was further agreed that his discharge would not be effected until a decision was reached and that additional time would be given him to pay his dues if any award required that he do so. On July 20, ' The Company and the Union, since October 1946, had contracts in existence which contained union-security provisions. The October 15, 1948, agreement was preceded by one executed February 5, 1948, but effective as of December 5, 1947, and by its terms expired on October 15, 1948. It contained the same union-security clause as the one which followed. 2 The UA election was delayed because of the pendency of representation petitions. The election was held immediately upon the dismissal of those petitions. MONSANTO CHEMICAL COMPANY 519 1949, a majority of the arbitration board issued a decision and award, directing McClellan's discharge unless he paid arrears in dues within 30 days after the award. On August 19, 1949, McClellan requested the Company's personnel director to turn over to the Union the $12 held in escrow, and wrote an authorization to that effect. On August 22, 1949, the Company notified the Union orally of this authorization, and the Union, also on the same day, advised the Company that it was its position that McClellan had failed to tender his dues in accordance with the arbitration award, and insisted on his discharge. The latter position was confirmed in writing by the Union in a letter to the Company dated August 23, 1949. On August 24, 1949, the Company wrote the Union, enclosing the sum of $12 which it held in escrow. On August 25, 1949, the Union again demanded McClellan's discharge, and on the same day, the Company discharged him. It seems clear from the above facts that McClellan was discharged because of his failure to pay dues for a period which included the months of November and December 1948 and part of January 1949. However, this was a period when the Union had not yet been certified under Section 9 (e) to enter into a union security agreement, and was therefore without authority to enforce the union security clause. , This retroactive application of the union security clause would therefore have been illegal even if McClellan had remained a member of the Union after October 15,1948 3 Moreover, we find, as did the Trial Examiner, that McClellan's letter of September 9,1948, resigning from the Union as of October 15, 1948, was an effective resignation from the Union.' Therefore, as the maintenance of membership clause of the contract by its own terms was not effective until January 10, 1949 (when the Union was certified as authorized to execute such agreement), there was never any subsequent contractual obligation for McClellan to rejoin the Union, and the discharge for failure to pay dues from November 1948 through August 1949 cannot be defended by the con- tract. Thus we find, on both of these grounds, that the contract was illegally applied, and it therefore becomes unnecessary to pass upon the Trial Examiner's finding that the contract was invalid on its face. The Trial Examiner ruled that, but for the fact that McClellan had complied with the arbitration award, and was nonetheless discharged, he would have honored the award and dismissed the complaints. We disagree with this reasoning. 'New York Shipbuilding Corporation, 89 NLRB 1446 ; General American Aerocoach, etc., Corporation, 90 NLRB 239 , Eclipse Lumber Company, 95 NLRB 464. 4 Although the Union in its letter to the Company dated March 2, 1949, stated, among other things, that McClellan and the other employees "have been and still are members in good standing . . . inasmuch as the union to date has not suspended or expelled them, nor have these members properly severed their membership in the union . . ." it does not appear that the Union 's constitution and bylaws have any procedural requirements for resigning from the Union which McClellan failed to follow. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is quite clear that as a matter of law the Board is not bound by the arbitration award and the agreement of McClellan to comply therewith. Section 10 (a) of the Act provides that the Board's power to prevent unfair labor practices affecting commerce "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise. . . ." The Ninth Circuit In N. L. R. B. v. Walt Disney Productions,' after re- ferring'to this provision in the statute, said: Clearly, agreements between private. parties cannot restrict the jurisdiction of the Board. We believe the Board may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the Act. - The Board has in the past exercised the "discretion" to which the court alluded and has remedied an unfair labor practice even though arbitration had, in fact, been used by the parties to dispose of an issue arising under an agreements We have already found that McClellan's discharge was violative of the Act. It is thus clear that the terms of the arbitration award directing the discharge of McClellan unless he paid the dues in question were contrary to existing law. There can be no justification for deeming ourselves bound, as a policy matter, by an arbitration award which is at odds with the statute. We Shall therefore disregard the award in this case. There is thus no need for us to decide, as the Trial Examiner did, whether McClellan had in fact complied with the terms of the arbitration award. Accordingly, we find that by causing McClellan's discharge, the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act, and by discharging him the Respondent Company violated Section 8 (a) (3) and 8 (a) (1) of the Act.' The Remedy Having found that the, Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and-take certain affirmative action designed to effectuate the policies of the Act,, as recommended by the Trial Examiner. However as our finding of discrimination is not predicated on the invalidity of the union-security provision in the agreement between the Company and the Union, but rather on the illegal application of that provision, we shall not require,. 146 F 2d 44. 48. Wisconsin Axle Division, The Tunken-Detroit Axle Company, 92 NLRB 968; Hamilton- Scheu & Walsh Shoe Company,' 80 NLRB 1496, Rieke Metal Products Corporation, 40, NLRB 867; J . Klot- t Company, 13 NLRB 746 . See also Combustion Engt'neering Corso- pany, Inc., 86 NLRB 1264 The Respondents , in their exceptions , also raise several procedural contentions. As to those, we are satisfied that the Trial Examiner 's disposition of those issues in the Inter- mediate Report is in accord with Board practice , and accordingly adopt without further comment his findings and conclusions as to that phase of the case. MONSANTO CHEMICAL COMPANY 521 as the Trial Examiner did, that the Company and the Union remove the clause in question from the agreement. 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 : 1. Monsanto Chemical Company, St. Louis, Missouri, its officers, agents, successors, and assigns shall : a. Cease and desist from : (1) Encouraging membership in International Chemical Workers Union, Local No. 16, A. F. L., or any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment, except to the extent permitted by the proviso to Section 8 (a) (3) of the amended Act. ,(2) In any like or related manner interfering with, restraining, ,or coercing its employees in the exercise of their right to self-organ- ization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action necessary to effectuate the policies of the Act : (1) Offer Henry McClellan immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (2) Post at its plant in St. Louis, Missouri, copies of the notice .attached, hereto marked "Appendix A" .s Copies .of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Company's representative, be posted by the Company for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Com- pany to insure that said notices are not altered, defaced, or covered by any other material. (3) Upon request, make available to the Board or its agents pertinent records necessary to expedite compliance with this recom- mended order. s 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." 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. II. International Chemical Workers Union, Local No. 16, A. F. L., its officers, representatives, agents, successors, and assigns, shall: a. Cease and desist from : (1) Causing or attempting to cause Monsanto Chemical Company, its officers, agents, successors, and assigns, to discharge any of its employees because they are not members in good standing in Inter- national Chemical Workers Union, Local No. 16, A. F. L., or any other labor organization, except in accordance with Section 8 (a) (3) of the Act; or in any other manner causing or attempting to cause said Company, its officers, agents, successors, and assigns, to dis- criminate against any of its employees in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing employees of the Company, in the exercise of their right to self-organization, to'form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action necessary to effectuate the policies of the Act : (1) Immediately notify the Company and Henry McClellan, at his last known place of residence, in writing, that it has no objection to the immediate reinstatement of Henry McClellan to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges. (2) Post immediately in conspicuous places in its business office and wherever notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix B." 9 Copies of said notice, to be furnished by the Regional Director for the Four- teenth Region, shall, after being duly signed by an official rep- resentative of the Union, be posted by it immediately upon receipt thereof and be maintained for a period of at least sixty (60) consecu- tive days thereafter. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. Y Sae footnote 6, supra. MONSANTO CHEMICAL COMPANY 523 III. Monsanto Chemical Company, St. Louis, Missouri, its officers, agents, successors, and assigns, and International Chemical Workers Union, Local No. 16, A. F. L., its officers, representatives, agents, successors, and assigns, shall, jointly and severally, make whole Henry McClellan for any loss of pay he may have suffered because of the discrimination against him, in the manner set forth in Section V of the Intermediate Report entitled "The Remedy." MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES OF MONSANTO CHEMICAL COMPANY 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 our employees that : WE WILL NOT encourage membership in INTERNATIONAL CHEMI- CAL WORKERS UNION, LOCAL No. 16, A. F. L., or any other labor organization, by discriminating in regard to hire or tenure of employment, except to the extent permitted by the proviso to Section 8 (a) (3) of the amended Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, and to re- frain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3). WE WILL offer Henry McClellan immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL also make whole Henry McClellan for any loss of pay incurred as a result of the discrimination against him. MONSANTO CHEMICAL COMPANY, Employer. By ----------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL MEMBERS OF INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL No. 16, A. F. L. 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 MONSANTO CHEMICAL COMPANY, its officers, agents, successors, or assigns, to discharge or otherwise discriminate against any of its employees because they are not members in good standing of INTERNATIONAL CHEMI- CAL WORKERS UNION, LOCAL No. 16, A. F. L., except in accordance with Section 8 (a) (3) of the Act, or in any manner cause or attempt to cause that Company, its officers, agents, successors, or assigns to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of MONSANTO CHEMI- CAL COMPANY in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargaib collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE HAVE notified HENRY MCCLELLAN and MONSANTO CHEMICAL COMPANY that we have no objection to the employment of McClellan because of his nonmembership in good standing in the Union. WE WILL also make whole HENRY MCCLELLAN for any loss of pay incurred as a result of the discrimination against him. INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL No. 16, A. F. L., 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 and Recommended Order STATEMENT OF THE CASE Upon charges duly filed and upon complaint and notice of hearing subsequently issued and served by the General Counsel, and answers having been filed, a MONSANTO CHEMICAL COMPANY 525 hearing upon due notice was held at St. Louis, Missouri, before the undersigned Trial Examiner on March 19 and 20, 1951, involving allegations of unfair labor practices in violation of the National Labor Relations Act, as amended (61 Stat. 136), by the above-named Company and Union. Briefly the allegations, as amended at hearing, are to the effect that by the maintenance of a contract con- taining an illegal union-security clause and by the discharge of employee Henry McClellan on August 25, 1949, for nonmembership in good standing in the Union, the Company and the Union violated, respectively, Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act. All parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. On May 7, 1951, briefs were submitted by all counsel except for McClellan and have been considered. On the same date the parties submitted a factual stipulation and also a stipulation for correction of the transcript of record. The stipulations are approved and the record ordered corrected accordingly. Procedural issues raised are disposed of in the following findings and conclusions. Upon the entire record in the case and from observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The parties stipulated to the following facts. Monsanto Chemical Company, a Delaware corporation, is engaged in the manufacture of heavy chemicals, organic chemicals, and intermediates. The Company operates about 17 plants throughout 13 States of the United States. This proceeding is concerned' only with the Company's John F. Queeny plant which is located at St. Louis, Missouri. During the last preceding year, the Company purchased raw materials for the Queeny plant comprising inorganic commercial acids and salts, refined coal tar crudes, and synthesized and natural organic base materials, valued in excess of $1,000,000, of which more than 75 percent was purchased and shipped to the Queeny plant from points outside the State of Missouri. During the same period, the Company sold finished products valued in excess of $1,000,000, of which more than 75 percent was sold and shipped from the Queeny plant to points outside the State of Missouri. The Company concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE LABOR ORGANIZATION INVOLVED International Chemical Workers Union, Local No. 16, A. F. L., is a labor organization affiliated with the American Federation of Labor admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. The contracts For some years the Union has been the duly certified bargaining agent for the Company's production and maintenance employees at its John F. Queeny plant, and during that time has had continuous contractual relations with the 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company. During World War II, a War Labor Board Directive required the parties to establish a standard maintenance-of-union-membership clause with the then customary escape provision. On October 15, 1946, the Company and the Union executed a bargaining con- tract effective for 14 months after date, containing the following union-security clause : Article 2, Section 2., All employees who as of June 12, 1946, were members of the union in good standing in accordance with the Constitution and By-Laws of the Union, and all employees who thereafter became or become members shall as a condition of employment remain members of the union in good standing for the duration of this agreement. That contract was succeeded by another dated February 5, 1948, but effective from December 15, 1947, the expiration date of the 1946 contract, to October 15, 1948, and containing the following union-security clause : Article 2, Section 2. All employees who, on the effective date of this Agree- ment, are members of the union in good standing, in accordance with the Constitution and By-Laws of the union, and all employees who thereafter become members, shall, as a condition of employment, remain members of the union in good standing for the duration of this Agreement. The foregoing clause shall go into effect at such time as the National Labor Relations Board shall hold a referendum among employees and shall certify authorization to make an Agreement requiring union membership as a condition of employment. This agreement, it will be noted, eliminated the retroactive clause contained in the 1946 document. The February 5, 1948, contract was succeeded by another dated and effective October 15, 1948, with an expiration date of October 15, 1949. This agreement contained the same clauses, quoted above, with respect to union security as its predecessor. It also contained an arbitration clause. That contract, in turn, was succeeded by another effective October 15, 1949, to and including April 15, 1951, and subsequently extended by supplements to 1953. It contains the following union-security clause : Article 2, Section 2. All employees in the bargaining unit, who, on the effective date of this agreement, are members of the union and all employees who thereafter become members, shall, as a condition of employment, remain members of the union in good standing for the duration of this agreement. During the negotiations for the agreement effective December 15, 1947, the Union, having the requisite showing, sought to file a petition with the Regional Director for a union-shop election, but was informed that the petition could not be entertained because of the pendency of certain representation petitions for craft severance. On the date of execution of the successor contract, October 15, 1948, the Union filed a petition for a union-shop election which was docketed and became known as Case No. 14-UA-2675. Again because of the pendency of petitions for craft severance no election could be held until January 7, 1949,- after the craft severance petitions had been dismissed. On January 10, 1949, the Regional Director certified that the Union was authorized to enter into a union-security agreement with the Company. The October 1946 agreement contained a provision for involuntary checkoff of dues of union members ; those of February and October 1948 for voluntary checkoff of dues of employees who authorized such deduction by assignment revocable after 1 year or the termination of the agreement, whichever occurred MONSANTO CHEMICAL COMPANY 527 earlier. The record does not disclose whether there is any provision in the 1949 contract for checkoff of dues. Union dues are $2 per month. B. The union constitution Article XV, Section 20 of the Constitution of the International Union and Article III, Section 8, 9, and 10 of the Constitution of the local union , provide as follows : All dues and assessments are payable on the first day of the month to which they apply. Any member two (2 ) months in arrears is in bad standing and shall not be permitted benefits nor shall they be permitted to attend any meetings. Any member three (3) months in arrears shall stand suspended . - [Unless the International Executive Board waives this provision ] Any member so suspended shall be required to pay all arrearage , not to exceed twelve (12) months' back dues, plus the current month 's dues and a reinstatement fee of two dollars ($2.00). One dollar ($1.00) of the reinstatement fee shall be paid into the International Union treasury . There shall be no exemptions for fines and assessments. During all material times herein the Company was in possession of copies of the constitution and bylaws of the International and local union. C. The discharge of McClellan Henry McClellan , until his discharge on August 25, 1949, was employed by the Company for more than 15 years and was in the bargaining unit represented by the Union . Throughout the years 1946 and 1947 , McClellan was a member in good standing of the Union in accordance with its constitution and bylaws. The February 1948 contract was due to expire on October 15 , 1948. Over a month before that date, on September 9, 1948, McClellan sent and within a few days the Union received a letter which stated : Please except [sic] this letter as my resignation from Local 16, effective October 15th , as of the ending of this contract year. My reason is that I am not satisfied with officers in charge in handling the union's business. Thereafter , on October 8, 1948, McClellan and two other employees mailed and the Company within a few days received the following letter: Please discontinue checkoff of Union Dues as of October 15, 1948, for the following names : ( Signed ) H. MCCLELLAN #169. W. JEFFERSON #218. E. WYATT #222. Prior to receipt of this letter the Company had already deducted McClellan's dues for the month of October 1948 and had paid them to the Union. After receipt of the letter, however, the Company ceased to make such payments to the Union, though it continued to deduct McClellan 's dues for a number of months thereafter and to hold the money in escrow. This action was a consequence of an assertion by the Union that McClellan 's resignation and cancellation of the checkoff authorization were ineffective to relieve him of his financial obligations to the Union. On January 17, 1949, the Union submitted to the Company a list of members "as of the date specified in Article 2" of (presumably ) the October 1948 contract 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which list included the name of McClellan. On January 25, 1949, the Union wrote the Company requesting the latter to "take proper action" with respect to 17 persons, among them McClellan named as delinquent in union dues. On or about January 26, 1949, McClellan sustained an injury arising out of his employment and was incapacitated until February 28, 1949, when he returned to work. He then worked until April 16, 1949, when he again ceased work due to the same injury. On July 31 , 1949, McClellan was discharged by his doctor and thereupon began a 3-weeks' paid vacation , returning to work August 22, 1949. He worked through August 25, 1949, and was discharged at the end of that day. The events between January and late August 1949 which led up to McClellan's discharge were as follows : - On February 16, 1949, the Union sent the Company a list of members in arrears in dues, and "in good standing on January 10, 1949," whom it requested be laid off until their dues were paid up. The letter further requested that if the delinquencies were not defrayed by March 1 , 1949, the employees be "permanently discharged in accordance with Article 2, Section 2 of the Agreement of October 15, 1948." McClellan's name was included on the accompanying wlist, with in- dicated arrearages in dues from November 1, 1948. Dispute arose between the Company and the Union as to whether some of these employees , among them McClellan , should be discharged. In a letter to the Company dated March 2 , 1949, the Union stated its contention to be . . . that these . . . employees have been and still are "members of the union in good standing , in accordance with the Constitution and By-Laws of the union," irrespective of the fact that they are in arrears in the payment of their dues, inasmuch as the union , to date, has not suspended or expelled them, nor have these members properly severed their membership in the union. A meeting was held between the Company and the Union on March 4, 1949, at which they agreed to submit to arbitration under the contract the issue as to whether McClellan and another employee , L. J. Smith, should he discharged unless they complied with Article 2, Section 2 of the contract. An arbitration hearing was subsequently held on April 22 and 23, 1949, before a board consisting of one member chosen by the Company , one by the Union, and an impartial arbitrator , Elmer H. Hilpert, chosen by both upon the suggestion of the Company. Henry McClellan was present at this hearing, was represented by an attorney , Gillette F. Wright, participated fully therein , and agreed in writing that the decision of a majority of the board of arbitrators should be final and binding on all parties, and a complete disposition of McClellan 's case. The Company took no active part in the proceedings , other than to supply neces- sary factual data, its position being that the matter was essentially a dispute between the Union and its members or former members ; that the Company's only interest was to see that the terms of the contract were carried out; but that it could not acquiesce voluntarily to the Union 's request. On July 20, 1949, a majority of the board arbitrators issued a decision and award, from which the company member dissented . The holding was that Mc- Clellan and Smith were subject to the union -security provision of the contract and they were given 30 days to comply under penalty of discharge. On August 2, 1949, McClellan was advised by the Company of the arbitration award and indicated that he understood its terms, but that he did not propose to do anything about the matter until he had returned to work from his vaca- tion-August 22 . However, on August 19, the thirtieth day after the arbitra- tion award, McClellan executed and delivered to the Company a written au- thorization releasing to the Union the sum of $12, which had been previously MONSANTO CHEMICAL COMPANY 529 deducted from his pay by the Company and impounded pending determination of the dispute. This sum represented dues for the months from November 1948 to April 1949, inclusive. The Company was unable to advise the Union of this action, however, until the following Monday, August 22. On August 22, 1949, the Union by letter notified the Company that McClellan and Smith had not complied with the arbitration award. On the same day the Company orally notified the Union that McClellan had authorized the release of his checked-off dues ; the Union responded that the action did not constitute compliance with the award and demanded that the discharges be executed, a position" which it confirmed in writing the following day. On August 24, the Company acknowledged receipt of the Union's August 23 letter, enclosed its own check for $12, stated its belief that McClellan's position was that his authori- zation constituted compliance with the award, and inquired as to the Union's position under the circumstances. On the following day the Union acknowledged receipt of the $12 and orally reiterated its contention that McClellan had not complied with the award and should be discharged. And on August 25 the Company discharged him. Smith had been terminated previously on August 19. D. The charges, the settlement agreements, and the request for review Four days after McClellan's discharge, on August 29, 1949, Gillette F. Wright, McClellan's legal counsel, filed with the Board and signed as "attorney," charges against the Company and the Union asserting that McClellan and Smith had been discriminatorily discharged. Wright was in fact the attorney for both McClellan and Smith. Upon these charges the Regional Director, on April 6, 1950, issued complaints, consolidated for hearing, against the Company and the Union. The gist of these complaints was that the Union caused and the Com- pany discharged McClellan and Smith for their nonmembership in the Union though there was no contract validly requiring such membership as a condition of employment. The case was noticed for hearing for May 9, 1950, and answers duly filed, but on May 9, 1950, the Regional Director indefinitely postponed the hearing. And on the following day, May 10, a settlement agreement settling both McClellan's and Smith's cases and approved by the Regional Director, was executed and signed by the Company, the Union, Smith, and Wright as attorney for Smith ; but not by McClellan, The agreement provided that upon compliance with its terms the Regional Director would withdraw the complaints and dismiss any charges not withdrawn. McClellan refused to consent to the settlement. Gil- lette, who apparently deemed the terms satisfactory, then withdrew as McClel- lan's counsel. McClellan then secured a new attorney, James R Blumenfeld. On May 18, 1950, Blumenfeld wrote the General Counsel in Washington, D. C., stating that he wished to obtain a review of the settlement agreement and requested an extension of time therefor. In the meantime questions had appar- ently arisen as to whether the procedure followed had been correct, for on May 24, 6 days after Blumenfeld's letter to the General Counsel, the Regional Director issued an order withdrawing the complaints, and on the same day the parties executed an amended settlement agreement stating in part: Upon the basis of this Agreement, the Regional Director shall decline to issue a Complaint herein. A review of such action may be obtained pursuant to Section 203.19 of the Rules and Regulations of the Board if a request for same is filed without [sic] ten (10) days thereof. This Agree- ment is contingent upon the General Counsel sustaining the Regional Director's action in the event of a review. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime after May 18-the date is not disclosed-the General Counsel replied to Blumenfeld's letter substantially to the effect that the case was in the hands of the Regional Director and that an extension of time for requesting review was accordingly unnecessary. On May 25, 1950, the Regional Director sent letters to the parties notifying them that he was refusing to issue complaints and advising them that any re- quest for review must be filed within 10 days of receipt of his letter. McClellan received this letter on May 26, 1950. Eighteen days later, on June 14, 1950, Attorney Blumenfeld wrote a letter to the General Counsel, which the latter received about June 16, acknowledging that the time for seeking review had expired , but requesting a 2-week extension of time, and stating further than McClellan had decided to appeal the matter himself. On June 30, 1950, the General Counsel advised Attorney Blumenfeld that time to file a request for review had been extended to July 7. In the meantime McClellan changed his attorney again. On July 5, 1950, the firm of Witherspoon , Lewis and Draper as attorneys for McClellan filed a re- quest for review with the General Counsel , who acknowledged this request on July 11 and stated that it would be considered. Copies of the acknowledgment were mailed to all the parties. No copy of this request was filed with the Re- gional Director-though the Board's Rules and Regulations required it. On July 12, 1950, not knowing of the request for review, the Acting Regional Director wrote to all the parties to the effect that no request for review had been made and that the settlement agreement was in full force and effect. But on July 14, lie wrote the parties that he had just been advised of the request for review, and that his letter of July 12 should therefore be disregarded. On December 15, 1950, the General Counsel by letter received within 3 or 4 days thereafter advised the parties that he had sustained the appeal and directed the Regional Director to process the charges as to McClellan. On February 27, 1951, George W. Draper, attorney for McClellan, filed charges against the Company and the Union identical with the original charges filed by Gillette, except that Draper's charge referred only to McClellan. And on the same day, new complaints were issued , upon which the instant hearing was held- E. Conclusions 1. The procedural questions The Respondents have raised a number of procedural considerations as grounds for summary dismissal . The principal contentions , from which, subsidiary conclusions flow, are that : ( 1) The requests for review was untimely (2) only Attorney Wright could file a request for review, because the privilege of making such a request is restricted to "the person making the charge" ; and (3) the request was fatally defective because no copy thereof was filed with the Regional Director . As a consequence , the contentions run (a ) the settlement agreement was res judicata; (b) the original charges expired and the issues raised by them, (1) could not form the basis of any complaint whatever and (2 ) could not form the basis of any complaint not barred by the 6 months' limitation in Section 10- (b) ; and ( c) the Draper charges could not provide the basis for a complaint be- cause ( 1) the statute of limitations had run and (2) Draper was not a party im interest and an "improper" party to file a charge. These contentions are found not to be sustained. MONSANTO CHEMICAL COMPANY 531 Section 203.19 of the Rules and Regulations of the Board then in effect said : If, after the charge has been filed, the regional director declines to issue a complaint, he shall so advise the parties in writing, accompanied by a simple statement of the procedural or other grounds. The person making the charge may obtain a review of such action by filing a request therefor with the general counsel in Washington, D. C., and filing a copy of the request with the regional director, within 10 days from the service of the notice of such refusal by the regional director. [Emphasis supplied.] Section 203.86 of the same rules stated in part : Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of a notice or other paper upon him, and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. Section 203 93 of those rules stated : Rules to be liberally construed.-The Rules and Regulations in this part shall be liberally construed to effectuate the purposes and provisions of the Act. The notice of refusal to issue complaint was served on McClellan by mail on May 26. The 13 days allowed for appeal by Sections 203.19 and 203.86 expired on June 8. The request for extension based on the May 25 notice did not reach the General Counsel until June 16 It will be noted, however, that Blumenfeld had sought an extension of time from the General Counsel on May 18 after the execution of the May 10 settlement agreement-well within the 13-day period- and was informed that the case was still in the hands of the Regional Director and that an extension was unnecessary. It was not the fault of McClellan or Blumenfeld that the other parties thereafter took action over which the former had no control, namely, the execution of a new settlement agreement. Having done everything he could to preserve his rights and having in timely fashion taken steps to perfect an appeal, McClellan should not suffer prejudice because the other parties without his consent sought to start the proceedings all over again If the contractors are to be permitted to perfect their procedure, they should not be allowed thereby to put McClellan in a procedural whipsaw by which they obtain the fruit of their fresh start while denying him the right to contest either the agreements or the procedure. I find them estopped under the cir- cumstances from making the claim that the appeal was untimely. But beyond that I find that Blumenfeld effectively took steps to perfect an appeal within the meaning of Section 203.19 on May 18, and that what the other parties did there- after ex party could not extinguish his rights That Attorney Draper did not serve a copy of his request for review on the Regional Director simultaneously with service on the General Counsel seems mere technical irregularity. Notice of the request was sent by the General Counsel to all parties within the next several days, and no apparent prejudice resulted. Whether or to what extent the Administrative Procedure Act by implication withdrew from the Board any of the authority it formerly possessed to waive its rules (N. L. R. B. v. Pacific Gos and Light Co., 118 F. 2d 780, 788-9, C. A. 9) need not be determined. I do not in any event construe that Act as modifying the Board's or the General Counsel's power to grant reasonable, noncapricious extensions of time in indi- vidual situations where necessary to serve the ends of justice and to effectuate the Act, and where no substantive prejudice results.' If the settlement agreement 1 The situation suggests , however, that a specific provision in the rules giving the General Counsel and the Board such authority may be desirable. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been complied with by the Respondents without notice of, and in reliance upon the belief that there had been no request for review, a different question would be presented, and a different conclusion might be required. From these conclusions it follows that the settlement agreement of May 25 was not res judicata. Moreover, the agreement specifically provided that it was "contingent upon the General Counsel sustaining the Regional Director's action in the event of review." The condition not having been satisfied, the agreement never became effective with respect to McClellan. It is consequently unnecessary to discuss whether the doctrine of res judwcata would be applicable in any event. The subsidiary contentions with respect to the expiration of the original charges therefore also fall. As to the assertion that Draper was an improper person to file a charge and not a party in interest, two considerations seem dis- positive. In the first place I do not apprehend that, if the first charge supports jurisdiction, and I find that it does, the Draper charge was a prerequisite to valid process. In the second place, under Section 10 (b) of the statute and Section 203.19 of the Rules and Regulations then in effect, any person may file a charge: There is no requirement of interest. Brophy Engraving, 94 NLRB 719. Finally, there is the question as to whether anyone other than Attorney Wright could file the request for review, in view of the fact that rule 203.19 appears to authorize such review only by the "person making the charge." The choice of term "person" was apparently deliberate. Note, for example, that the preceding sentence of the rule used the word "parties." Both words are defined by the rules in such fashion as to be mutually exclusive. It is obvious that procedural difficulties and disabilities may ensue where charges are filed by one person alleging discrimination as to others, the Regional Director dis- misses or settles the case over the protests of the discriminatees, and the charging person then refuses to appeal. In the absence of representative status in the chargor evident fromi the face-of the charge,,it is questionable that any individual other than the chargor could appeal. Policy considerations might forbid collateral investigation as to whether the charge was filed -in a repre- sentative capacity when it does not itself so disclose. And if more than 6 months has elapsed since the discrimination, Section 10 (b) would effectively preclude new charges. To avoid such possible difficulties it might be desirable to amend the rules, perhaps by providing that "any aggrieved party" may file a request for review. In the instant case, however, no disability results. The charges disclose on their face that Wright filed them as "attorney" and not as an individual, and the evidence is that he was acting as attorney for Smith and McClellan. This .then, like the authorized pleading or related action of an attorney, was the action of Smith and McClellan themselves. They were therefore the "persons" filing the charges and could seek review either personally or by a representative. 2. The merits As originally drafted, the second complaints-upon which the hearing was held-alleged that McClellan was discharged and refused reinstatement at the insistence of the Union about August 25, 1949, for nonmembership in good standing in the Union, though there was not then in existence a valid contract requiring union membership as a condition of employment ; resulting in conse- quent violations of Section 8 (a) (1) and (3) and 8 (b) (1) (A) and 8 (b) (2). During the hearing the complaints were amended to allege additionally, in substance , that from such date to the present time the Respondents have unlawfully reauired employees to maintain union membership. MONSANTO CHEMICAL COMPANY 533 Neither on November 1, 1948, the time when McClellan assertedly became delinquent in union dues, nor on August 25, 1949, when he was discharged, nor at any intervening time, was there in existence any valid contract requiring union membership as a condition of employment. This would be so even if the Union had been authorized on October 15, 1948, to make a contract requiring such a condition, which it was not; and even if McClellan's withdrawal dated September 9, 1948, was not effective to terminate his obligation under the con- tract, though I find that it was. All the contracts from October 15, 1948, forward required union members to retain their union membership during the contractual term. Such a provision has been held by the Board to be illegal because it requires union membership of union members during the first 30 days of the contract-a result the Board has found to be violative of one of the provisos to Section 8 (a) (3) of the statute. National Foundry and Furnace Co., 88 NLRB 1083; Worthington Pump d Machinery Co., 93 NLRB 527; L. Ronney & Sons, 93 NLRB 1049.2 The Respondents point out that the contracts in question were in some re- spects more lenient than the statute, in that they did not and do not require union membership of any employee who did not voluntarily choose to join. It is therefore urged that in their totality the agreements constitute a form of voluntary union security less restrictive than the law, and for that reason are permissible. It is quite true that-other conditions being satisfied-the statute permits the acquisition of union membership to be made compulsory after 30 contractual days; and also evidently true that the contracts in question appear to contemplate the voluntary acquisition of union membership either in the future or at some time in the past. In that regard the contracts are less restrictive than the Act. However, they also provide for compulsory retention of membership without 30-day opportunity for escape. In that respect they constitute a greater, not lesser, form of security than statutorily authorized. As I understand the import of the Board decisions cited above, the invalid pro- vision is not saved by the fact that in other respects the parties contracted for less union security than possible under the Act. It is consequently found that at all times since August 25, 1949, the Union, in violation of Section 8 (b) (1) (A) and (8) (b) (2), has caused the Company to require, and the Company, in violation of Section 8 (a) (1) and (3), has required employees to maintain membership in the Union as a condition of employment. Under ordinary circumstances the conclusion would automatically follow from these premises that McClellan's discharge for nonmembership in the Union was violative of the Act. This is not, however, the ordinary circumstance. It has been seen that the issue of McClellan's termination was arbitrated under the contract machinery and that the decision was adverse to McClellan. Private contract cannot, of course, upset the law, and the Board is not required to give effect to private adjustment of disputes involving the operation of the statute where contrary to sound public policy. But, though the Board cannot be deprived by private arrangement of jurisdiction to remedy unfair labor practices, it has, as a matter of policy in certain cases, recognized the arbitration of issues under contractual machinery and as a consequence has declined to find violations. 2 The proviso .to Section 8 (a) (3) involved states that , other declared conditions being satisfied , nothing in any statute of the United States shall "preclude an employer from` making an agreement with -[ an appropriate labor organization ] . . to require as a con- dition of employment membership therein on or after the thirtieth day following the be- gtnming of such employment or the effective date of such agreement , whichever is the later . . . ." [Emphasis supplied.], 986209-52-vol. 97-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD See, for example, Timken Roller Beaming Co., 70 NLRB 500; Paramount Pictures, Inc., 79 NLRB 557. The availability of a-contractual mechanism for the ad- justment of industrial disputes has also been stated by the Board to be a ground for withholding the exercise of jurisdiction. Consolidated Aircraft Corp., 4T NLRB 694; cf. Combustion Engineervng Company, Inc., 86 NLRB 1264. In view of those cases, it would appear that the result of arbitration pursuant to contract may or ought in the ordinary circumstance to be recognized where the proceedings are regular and fair, within the scope of the contract, all parties agree to be fully and finally bound by the result, the judgment is not arbitrary, and recognition of it will not be incompatible with the basic purposes and policies of the Act. In the instant case McClellan bound himself, as he in fact testified, to accept the decision of the Board of arbitration as a final and conclusive disposition of the entire issue. The stipulation was not confined to the mere question as to the proper construction of the contract. There was no reservation of his right to pursue his remedy under the National Labor Relations Act, whatever the arbitration decision. The submission was voluntary and complete, with the advice and assistance of legal counsel. Under such circumstances I think the purposes of the Act will be best effectuated by declining to go behind the arbi- tration award This is not to assert that the award was necessarily correct, or that I would have found the same way. To require accuracy of the final judgment as the condition of recognition of the award is to reduce the recog- nition to a semantic. Here the proceedings were regular and fair, the decision reasoned, and the result not incompatible with the purposes of the statute. I am therefore constrained to recognize it. The sole remaining question then is whether McClellan complied with the award. If he did not, the complaint with respect to him should be dismissed. I find, however, that he did comply. The award directed the Union and the Company to accept compliance by McClellan as dispositive of the case. The terms of compliance were stated in paragraph number 3 of the award, as follows : 3. Messrs. McClellan and Smith are hereby apprised that they must, within thirty days after the date of this Award, pay their respective dues' arrearages, together with any re-instatement fee provided for in the Con- stitution and/or By-laws of the Union, and pay their respective Union dues for the month next following the date of this Award and for the months succeeding during which the "maintenance of membership" clause remains in force and effect, or be subject to discharge by the Company, under the terms and conditions of Article 2 of the Contract. Such payment of dues' arrearages and of the re-instatement fee may be made personally or by authorizing the Company to remit to the Union any sums which the Com- pany may have withheld from the wages of either Mr. McClellan or Mr. Smith, as the case may be, and "impounded," pending the outcome of this dispute. [Emphasis here supplied.] Such payment of current Union dues may be made either personally or by executing a payroll deduction authorization. The award was issued on July 20 , 1949. The direction above quoted plainly- stated that authorization by McClellan to the Company , within 30 days, to "remit to the Union any sums . . . withheld from ... wages . and 'im- pounded' should constitute "payment of dues, arrearages and of the reinstate- ment fee."' I construe that direction as providing, not the procedure by which. ' In fact no reinstatement fee was required by the Union. MONSANTO CHEMICAL COMPANY 535 arrearages and reinstatement fees could be defrayed (which would be a point- less provision), but what should •consttitute payment of arrearages and fees. When, therefore, within 30 days after the award, McClellan authorized the remittance of his impounded dues he fully met his dues arrearages under the award. On August 25, 1949, his only remaining financial obligation to the Union was for August dues, and as to these he was not in bad standing. The Union's constitution provides that a member is not in bad standing until 2 months in arrears in dues. The award is not to be construed as depriving McClellan of the rights conferred by the constitution. There remains for consideration the question whether there is, as contended by the Respondents, any Section 10 (b) problem raised by the contracts. It will be noted that if any unfair labor practices occurred by reason of the fact of execution or maintenance of the union-security clauses in the 1948 and 1949 contracts, such practices occurred during the first 30 days of existence of each contract, and presumably did not continue thereafter. If, therefore, findings of unfair practices were requested by the General Counsel on the basis of the existence, execution, or maintenance of the 1948 contract, Section 10 (b) might be applicable, since the initial charges were filed more than 6 months after (presumably) any such unfair practices occurred. However, it has been seen that the complaint does not allege any such kind of unfair labor practice by reason of the 1948 contract, but merely that at the time of McClellan's discharge there was not in existence any agreement validly requiring membership in the Union as a condition of employment. And while the security clause in the 1949 contract is specifically attacked as unlawful, charges sufficient-under the doctrine of Cathef Lumber Co., 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5) ; and Morristown Knitting Mills, 80 NLRB 731-to support that attack were timely filed. No finding of unfair practices in the existence, execution, or main- tenance of the 1948 contract is necessary to a finding of unfair practices in the discharge of McClellan. Section 8 (a) (3) effectively forbids discharge for nonmembership in good standing in a union unless protected by an agreement conforming to its requirements. Since the Board has held that clauses like that contained in the 1948 agreement do not so conform, it follows that the discharge was discriminatory, and that no Section 10 (b) question is presented. Cf. Axelson Mfg. Co., 88 NLRB 761; Crowley's Milk Company, Inc., 88 NLRB 1049; Florida Telephone Corporation, 88 NLRB 1429; El Mundo, Inc., 92 NLRB 724; N. L. R. B. v. Luzerne Tallow Co., 188 F. 2d 439 (C. A. 3) ; U. S. Rubber Company, 93 NLRB 1485. It is consequently found that McClellan fully complied with the relevant por- tions of the award, and that the Union by causing his discharge, and the Company by discharging him on August 25, 1949, violated, respectively, Section 8 (b) (1) (A) and (2) and8 (a) (1) and (3) of the Act` IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE . The activities of the Company and the Union set forth in Section III, above oc- curring in connection with the operations of the Company described in Section I, * The General Counsel and McClellan also contend that the $12 payment was compliance for another reason. The Union has a rule of many years' standing, either excusing a member from payment of dues or reimbursing him after payment and upon demand (which is a fact that is disputed ) for dues during any month in which he is unable , due to illness or injury, to work as much as one full week. McClellan's absences due to injury have been detailed heretofore. Deducting for his injury absences , McClellan owed at the maxi- mum $12 dues , even if his August 1949 dues are included . The Union asserts, among other contentions , that the rule requires payment and then application for refund . Having found that McClellan complied with the award for other reasons, it is unnecessary to decide the case on the basis of which is the more appropriate bookkeeping procedure. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free- flow of commerce. V. THE REMEDY - It having been found that the Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. As to McClellan, it will be recommended that the Union notify the Company and McClellan, in writing, that it has no objection to his employment by the Company without discrimination because of his nonmembership in good stand- ing in the Union. As to the Company it will be recommended that it reinstate McClellan to his former or substantially equivalent position without prejudice to his seniority or other former rights and privileges. It will be recommended that the Company and the Union, jointly and severally, make McClellan whole for any loss of pay incurred by reason of the discrimination against him. Exact computations shall be in accordance with the Board's usual policies. (F. W. Woolworth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.) The Union may terminate further, accrual of back pay by notifying the Company that it has no objection to, and permit- ting, McClellan's employment on a nondiscriminatory basis; the Company by employing McClellan nondiscriminatorily. Since the existing collective bargaining contract, dated October 15, 1949, and subsequently extended, contains an invalid union-security clause, it will be recommended that the parties be ordered to remove this clause from their agree- ment and to cease giving effect to it.' It will also be recommended that the Company be directed, upon reasonable request, to make all pertinent records available to the Board and its agents to expedite compliance. I [Recommended Order omitted from publication in this volume.] 5 The General Counsel has not requested in his brief, and I assume for adequate reason, that the remedy for the contract illegality be any broader than removal of the invalid clause. Cf. Julius Resnick, Inc., 86 NLRB 38; Salant & Sakent, 87 NLRB 215; and Strauss ,stores, 94 NLRB 565. CHARLES A. KRAUSE MILLING Co. and LOCAL No. 9, INTERNATIONAL UNION OF BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS, CIO, PETITIONER. Case No. 13-RC-1928. December 13, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herman J. DeKoven, 97 NLRB No. 75. Y