Bloomingdales's

BLOOMINGDALE'S BLOOMINGDALE' S and WILLIAM P. WARD 191 DISTRIBUTIVE , PROCESSING AND OFFICE WORKERS OF AMERICA, LOCAL 3 and WILLIAM P. WARD. Cases Nos. 2-CA-2584 and 2-CB-810. November 25, 1953 DECISION AND ORDER On June 30, 1953, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled consolidated pro- ceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner but only to the extent consistent with our Decision and Order. 1. The Trial Examiner concluded that the Respondent Union had not violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act by causing the Respondent Company to discharge William P. Ward, the charging party, on June 30, 1952. We do not agree. Briefly, the facts in this case are as follows: The Union and the Company at all times material herein were parties to a col- lective -bargaining agreement containing a valid union -security clause which conditioned an employee's employment upon membership in the Union. Ward was an employee of the Company and a member of the Union. He was obligated, under the terms of the contract and in accordance with the proviso to Section 8 (a) (3) and 8 (b) (2) of the Act, to tender the periodic dues "uniformly required as a condition of . . . retaining member- ship." He was discharged, at the request of the Union, ostensibly because he had failed to pay his dues. The record, however, re- veals that as early as August 6, 1951, Ward was notified in writing by the Union that it would not accept his future tender of dues unless he presented a valid excuse for nonattendance at union meetings or paid certain fines incident thereto. At no time was this "FINAL NOTICE" to Ward rescinded by notice from the Union that it would accept his dues, if tendered. On the con- trary, thereafter in October and November 1951, and in January 1952, Ward tendered his dues to the Union but on each occasion his dues were rejected because he would not at the same time pay his accumulated fines. As the facts detailed in the Inter- mediate Report reveal, the Union's requirement that fines be paid before dues would be accepted was the source of a long- standing, tripartite dispute between Ward, the Union, and the Company. In his final interview with Vincent Brennan, the Com- 107 NLRB No. 62. 1 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany's personnel manager, Ward was instructed, as he had been on each of the previous occasions, to tender his dues. The Union, Brennan informed him, was interested only in dues and would accept his tender. Ward was uncommunicative and did not again tender his dues. He was discharged on the following day. We cannot agree with the Trial Examiner that it was in- cumbent upon Ward, after his last interview with Brennan, to again tender his dues. While we are mindful of and do not con- done the intransigent and uncooperative attitude adopted by Ward during this interview, we do not regard Brennan's remarks to Ward as sufficient to dispel the futility of tendering dues without the payment of fines. In the absence of specific notice from the Union to Ward that his dues would be accepted without regard to fines, we are persuaded on the facts in this case that another tender by Ward would have been a futile gesture. Under these circumstances, we conclude that the Union sought and obtained Ward's discharge not because he had failed to pay his dues, the assigned reason, but because he refused to pay fines levied against him. i Accordingly, we find that by causing the Company to discharge Ward because he had been suspended from membership in the Union for a reason other than his failure to tender periodic dues uniformly required as a condition of retaining membership, the Union has violated Section 8 (b) (2) of the Act. We also find that this conduct of the Union is violative of Section 8 (b) (1) (A) of the Act.2 2. The Trial Examiner concluded that the Company itself had committed no unfair labor practice in discharging Ward because it did not know or have reasonable grounds to believe that the Union had requested his discharge for a reason other than his failure to tender periodic dues. The record shows that the Com- pany undertook in a meticulous manner to carry out the terms of its contract with the Union, and no more. While the Union had made no statements to Ward disavowing the necessity to pay fines, company officials were told on numerous occasions by union agents that the Union was interested only in Ward's dues and that fines were not involved. In connection with its final re - quest for Ward's discharge the Union specifically informed Brennan that it would accept Ward's dues, if tendered. Thus, on June 30, 1952, the Company was in the position of having been repeatedly assured that the Union' s sole reason in requesting Ward's discharge was his failure to pay dues, as required under the contract. Nor did the Company stop at these assur- ances. Before the discharge occurred Brennan interviewed Ward and attempted to determine, with all due diligence, whether some reason other than his failure to pay dues motivated the Union's request at this time. Ward was completely uncoopera- i Westinghouse Electric Corporation, 96 NLRB 522, 525 and cases cited therein; enforced sub nom N L R. B v. I A. M Local 504, 203 F. 2d 173(C A. 9). Cf. National Lead Company, 106 NLRB 545 2 Westinghouse Electric Corporation, supra BLOOMINGDALE'S 19 3 tive. In view of these facts , we find, in agreement with the Trial Examiner , that the Company did not have reasonable grounds for believing that Ward ' s discharge was requested in June 1952 , for a reason other than his failure to pay dues. Accordingly , we find that the Company did not violate Section 8 (a) (1) and ( 3) of the Act.3 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union, set forth above, oc- curring in connection with the operations of the Respondent Company described in section I of the Intermediate Report, have a close, intimate, and substantial relation to commerce, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 Re- spondent Company and Ward that it has no objection to Ward's immediate reinstatement to his former or substantially equiva- lent position4 as an employee of the Respondent Company, with- out prejudice to his seniority or other rights or privileges. We shall also order the Respondent Union, which we have found responsible for the discrimination suffered by Ward , 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. 5 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 Ward is entitled , because of the Trial Examiner's recommendation that the complaint be dismissed. Accordingly , we shall order the Respondent Union to pay to Ward a sum of money equal to the amount that he normally 3Our dissenting colleague, in expressing disagreement with our holding, asserts that, if it were reasonable for the Employer to believe that Ward's discharge was requested for failure to pay dues , it was equally reasonable for Ward to reach the same conclusion. The difference upon which we rely is readily apparent . The Union communicated its assurance to the Employer, but the Union never communicated to Ward any change in the position it had previously taken with him, that it would not accept his dues unless he paid fines as well. 4The expression "former or substantially equivalent position " means "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. 5 The absence of any reinstatement order against the Respondent Company in no way affects our power to issue a back-pay order against the Respondent Union. National Union of Marine Cooks and Stewards, CIO (George C. Quinley), 92 NLRB 877 , and cases cited therein. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have earned as wages from June 30, 1952, the date of the discrimination , to 5 days after the date on which the Respondent Union notifies the Respondent Company and Ward, in accordance with our Order , that it no longer has objection to his immediate reinstatement , less his net earnings 6 during such period. 7 Consistent with the Board's established policy, Ewe 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 Ward' 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 Ward 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 this case , the Board makes the additional: CONCLUSIONS OF LAW 1. The Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 2. By restraining and coercing employees of the Respondent Company 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 Respondent Union are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 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 Distribu- tive , Processing and Office Workers of America, Local3, New 6By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the 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. 'Our back-pay order shall be construed as set forth in Pen and Pencil Workers Union Local 19593, AFL, 91 NLRB 883. 8 F. W. Woolworth Company, 90 NLRB 289. BLOOMINGDALE'S 19 5 York , New York , its officers , representatives , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Bloomingdale's, its of- ficers, agents , successors , and assigns , to discharge orin 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 con- dition 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 Bloomingdale's, its officers , agents, successors , and assigns, in the exercise of their right to engage in or to refrain from engaging in any and 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 Bloomingdale ' s in writing that it withdraws its ob- jections to the employment of William P. Ward and requests it to offer him immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges. (b) Notify William P. Ward in writing that it has advised Bloomingdale ' s that it withdraw its objections to his reemploy- ment and requests it to offer him immediate and full reinstate- ment. (c) Make whole William P. Ward for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section entitled " The Remedy." (d) Post in conspicuous places in its business office at New York , New York , where notices are customarily posted , copies of the notice attached hereto as an Appendix.9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall , after being duly signed by the Respondent Union's official representative , be posted by it immediately upon re- ceipt 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 Second Region signed copies of the notice attached hereto as an Appendix for posting, 9 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court Of Appeals , F iforcing and Order." 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer willing, at its plant in places where notices to employees are customarily posted . Copies of said notice, to be furnished by the Regional Director for the Second Region , shall, after being signed by the Respondent Union's official representa- tives, be forthwith returned to the Regional Director for said posting. (f) Notify the Regional Director for the Second Region in writing 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) (1) (A) of the Act by conduct other than that found to be violative in this Decision 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 Murdock , dissenting in part: I do not believe that either of the Respondents in this case has committed an unfair labor practice . This is not the first time that an issue of this type has been presented to the Board. In the National Lead case, cited above, the Union had imposed fines upon its members who failed to attend union meetings. The Board held that the Union did not forfeit its right to dues ac- cumulated during the period when it had insisted upon the pay- ment of fines together with dues . Moreover , as soon as the Union changed its position with regard to the payment of fines it could lawfully request an employee's discharge because of his failure upon notice to pay his dues. I see no substantial difference be- tween this case and that precedent . To find, as the majority do, that the Union ' s change in position must be communicated only by the Union itself directly to the employees affected seems to me a highly technical and unIealistic view of what actually oc- curred in this case. Ward , the discharged employee, had been feuding with the Union for some time during 1951 over its attempt to collect fines for nonattendance at union meetings . Apparently , several times in 1951 and once in January 1952 , his tender of dues had been rejected by the Union when he appeared at its offices with a "witness." Previously , however , inAugust 1951, his dues had been accepted when, at the suggestion of a company personnel representative , he sent them in by mail. At this time, accord- ing to Ward ' s own testimony , the Union had sent notices to the employees and posted one on the warehouse bulletin board to the effect that fines had to be paid before dues would be accepted. Before his last tender in January 1952, the Company ' s personnel manager, aware of the controversy over fines, had suggested to Ward that he mail in his dues as he had done previously and as other employees did. Ward refused. It is important to note, I think , that all of these events oc- curred more than 6 months before the Union ' s last and alleged unlawful request for Ward's discharge. Onthis last occasion the personnel manager, desirous of administering the contract in BLOOMINGDALE'S 19 7 accordance with the law, insisted upon and received assurances from the Union that it was now, 6 months later ,, interested only in Ward's dues and would accept them, if tendered . As the Trial Examiner found, this responsible official of the Company called Ward into his office and told him in no uncertain terms these facts. Ward refused to comment. When the personnel manager inquired if Ward felt that his last tender in January 1952, for- ever absolved him from again tendering dues, Ward again answered , "no comment." I have carefully considered the record in this case , particu- larly the facts with regard to the interview between Ward and the Company's personnel manager on June 30, 1953, set forth fully in the Intermediate Report. I am convinced , as was the Trial Examiner , that Ward seized upon the Union' s previous attempt to collect his fines with his dues as a pretext to avoid paying the latter . It is perfectly clear from this record that Ward ran not the slightest risk of discharge if he had tendered his dues as the Company requested him to do. The majority have no difficulty in finding that the Company had reasonable grounds to believe that the Union' s last request for his discharge was based solely on his failure to pay dues. But the facts upon which the Company must have predicated its belief were known 1equally to Ward . It seems to me that if it was reasonable for the Company to conclude that the Union meant what it said; and no more , it should have been reasonable for Ward to reach the same conclusion on the same facts. In exonerating the Company of unfair labor practices the majority say that the difference in treatment is due to the Union's failure to communicate the facts to Ward. But the issue , as I see it, is not who communicated what to whom, but whether Ward and the Company acted reasonably on the basis of facts within their knowledge . The record shows that the facts communicated by the Union to the Company were relayed to Ward by Brennan and that Ward knew as much as the Company knew. If the Company was entitled to rely upon the Union' s assurances that it sought only Ward' s dues, it seems to me that Ward , in turn, was obligated to rely upon the assurances of his personnel manager that dues only were invovled . The majority cannot have it both ways. I would affirm the Trial Examiner ' s dismissal of the complaint in its entirety. APPENDIX NOTICE TO ALL MEMBERS OF DISTRIBUTIVE, PROCESS- ING AND OFFICE WORKERS OF AMERICA, LOCAL 3, AND TO ALL EMPLOYEES OF BLOOMINGDALE'S 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: 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Bloomingdale's to discharge or in any other manner to discriminate against its employees in violation of Section 8 (a) (3) of the Act, or to discharge or in any other manner to discriminate against employees with respect to whom membership 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 membership. WE WILL NOT restrain or coerce employees of Bloomingdale ' s 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 re - quiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL notify Bloomingdale ' s in writing and furnish a copy to William P. Ward , that we have withdrawn our objections to the employment of Ward and that we request his reinstatement. WE WILL make William P. Ward whole for any loss of pay he may have suffered because of the discrimination against him. Distributive, Processing and Office Workers of America, Local 3 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 On January 22, 1953, upon charges duly filed by William P Ward in each of the above-entitled cases, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued an order consolidating the cases , a notice of hearing , and a complaint alleging that Blo-)mingdale ' s i and Distributive , Processing and Office Workers of America, Local 3 (herein called the Company and the Union respectively, and sometimes also referred to jointly as the Respondents ), have engaged in and are engaging in various unfair labor practices affecting commerce within the meaning of Section 8 and Sec- tion 2 (6) and (7) of the National Labor Relations Act as amended , 61 Stat 136, herein referred to as the Act With respect to the unfair labor practices the consolidated complaint alleges in substance that: 'As corrected at the hearing by amendment to the complaint BLOOMINGDALE' S 199 (1) Since on or about January 15, 1952, the Union attempted to cause the Company to dis- charge William P Ward and other employees for reasons other than their failure to tender the periodic dues uniformly required as a condition for retaining membership in the Union. (2) On or about June 30, 1952, the Union caused the Company to discharge William P Ward and since that time has caused the Company to refuse to reinstate him because of his non- membership in the Union notwithstanding that the membership of said Ward in the Union was terminated for reasons other than his failure to tender periodic dues uniformly required as the condition of retaining membership in the Union (3) Since on or about January 15, 1952, the Union has restrained and coerced and is re- straining and coercing employees in the exercise of the rights guaranteed by Section 7 of the ACt by applying moneys tendered by them in payment of periodic dues to the payment of fines imposed upon them for nonattendance at union meetings, and thereafter requesting the Company to discharge said employees for delinquency in the payment of periodic dues under the union- shop agreement between the Company and the Union, and by threatening said employees with discharge under said agreement for nonpayment of dues (4) On or about June 30, 1952, the Company discharged William P Ward and has since that time refused to reinstate him to his former or substantially equivalent position of employment (5) The Company discharged William P Ward and thereafter refused to reinstate him because of his loss of membership in the Union although the Company had and still has reasonable grounds for believing that Ward's membership in the Union was terminated for a reason other than Ins failure to tender the periodic dues uniformly required by the Union as a condition of retaining membership in it. (6) By its total course of conduct, outlined in the consolidated complaint, the Union--it is alleged--committed unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act The action of the Company with respect to the discharge of Ward is alleged to have involved an unfair labor practice under Section 8 (a) (1) and (3) of the Act. The Respondents filed separate answers to the complaint denying the commission of any unfair labor practices Pursuant to notice a hearing was held at New York, New York, on March 23 and 24 and April 7, 8, 9, and 10, 1953, before the undersigned Trial Examiner. The General Counsel and the Respondents were represented at the hearing and all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues The parties were given the opportunity to present oral argument before the Trial Examiner and to file briefs, proposed findings of fact, and conclusions of law. A brief has been received from counsel for the Company and has been duly considered. Upon the entire record of the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Bloomingdale's is a division of Federated Department Stores Incorporated, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, with its store and warehouse located in New York, New York. The Company is engaged in the opera- tion of a retail department store and maintains its principal office and place of business in New York, New York, and its warehouse operated in connection with the store in Long Island City, New York During the calendar year 1952, the Company in the course and con- duct of its business operations caused to be purchased, transferred, and delivered in inter- state commerce from States of the United States other than the State of New York, house- hold appliances, wearing apparel, and other goods and commodities valued in excess of $ 10,000,000 During the same period the Company sold at its retail department store goods and commodities valued in excess of $55,000,000 of which, approximately 10 percent was transported and delivered in interstate commerce from the Company's store and warehouse to points located in States other than the State of New York The Company admits, and it is hereby found, that it is engaged in commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Distributive, Processing and Office Workers of America Local 3, is a labor organization admitting to membership employees of the Company 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES The facts William P. Ward, the charging party , was an employee of the Company from 1935 until his discharge on July 1, 1952 During the last several years of his employment, Ward worked as a stock clerk in the Company ' s Long Island City warehouse. After a Board certification the Respondents on April 27, 1950, entered into a collective- bargaining agreement which contained inter alia the following clauses: Article II--Union recognition A All employees covered by this Agreement shall as a condition of employment become members of the Union on or within ten (10 ) days after the thirtieth (30th) day following ( 1) the beginning of such employment or (2) April 27, 1950, whichever is the later , and shall thereafter maintain their membership in the Union in good standing. B An employee who is expelled or suspended from the Union because of non-payment of initiation fees and dues shall be subject to dismissal after notification in writing to the Employer by the Union The General Counsel does not contest the validity of the union -shop clause. On July 10, 1951, the Union sent Ward the following letter by registered mail. Dear Member: You have been informed of your dues delinquency before but still have not brought yourself into good standing In accordance with the Constitution , we are sending you this final reminder. All dues must be paid in full , no later than Wednesday , July 18, 1951 Failure to comply by that date means that you will be automatically dropped from union membership We are calling to your attention onceagam , what being dropped from union membership means to you A member who is dropped: 1 Shall be obliged to leave the job. 2. Looses the right to receive any of the benefits accruing under our Security Plan, such as: Accident and Sick Benefits , Surgical Benefits , Hospitalization and Death Benefits. We trust that you are now fully aware of the penalties of being dropped from union membership and will bring your dues up to date immediately. Ward admitted receiving the letter He testified he did nothing about it. Early in August 1951 Ward was called to the employment office in the Company 's store. Ward requested the right to be accompanied by a" representative of his own choosing" from the warehouse . His request was granted . Ward and Henry Canin , a coworker, con- ferred with Veronica Smith , a personnel interviewer for the Company Ward testified that Smith informed him of the delinquency in dues to the Union . 2 She inquired if Ward was reluctant to pay the dues. Ward told Smith he would pay the dues but that he was reluctant to pay fines. Ward testified further that he told Smith that notices had been sent out to employees and also were posted at the warehouse to the effect that dues would not be ac- cepted unless the fines were paid Ward asked Smith how he could get the Union to accept the dues without having to engage in an argument . Smith suggested that Ward send a postal money order to the Union for the amount of the dues and set the deadline date for Friday (the conference was on Tuesday ) Ward followed Smith ' s suggestion and on Friday sent a postal money order to the Union in the amount of $14 80 In turn, Ward received a receipt 2 Ward also testified that Smith mentioned that there were some fines to be paid. He was unable to state whether Smith noted the amount of fines he owed and was extremely evasive regarding this phase of the conversation. In view of the action taken by Ward after his conference with Smith and the findings hereafter made with respect to the Company 's policy regarding the fines assessed by the Union, I do not accept this part of his testimony even though it remains uncontradicted in the record. See N L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79 (C A 9) BLOOMINGDALE'S 2 01 showing payment of dues for the months of April , May, June, and July, together with a warning notice as follows: WARNING DATE: 8/6/51 You have failed to account for the meetings of March , April, May, June, and July. We have accepted your dues and are giving you this FINAL NOTICE. NO FURTHER DUES WILL BE ACCEPTED UNLESS, you present a valid , official excuse , in accordance with the rules governing meeting excuses or pay the fine. EXCERPTS OF RULES GOVERNING MEETING EXCUSES ON REVERSE SIDE. (Reverse side) Members absent from a meeting without having secured an official excuse shall be required to pay a fine of one dollar ($ 1 00) for every such absence. If a member does not present a proper Steward 's excuse , he will be given one written warning No further dues will be collected unless he presents a valid excuse, or pays the fine. No Steward's excuse shall be valid unless presented to the Finance dept . within 30 days after the Membership meeting. Ward testified that early in October 1951 he went to the union office, accompanied by Camn, to pay dues for the months of August and September. Ward stated he "put money up" and told the clerk who he was . According to Ward , the clerk went to the file records, pulled out a card , told him there were fines noted on the record, and that it was a policy of the Union that the fines would have to be paid before his dues could be accepted . Ward informed the clerk he was there to pay 2 months' dues, not fines , that he did not feel obligated to pay fines . S The clerk thereupon turned to Murray Silverstein, an organizer for the Union, and said "this fellow just wants to pay dues He won't pay fines. You know I cannot accept dues un- less he pays the fine " Silverstein told Ward that he was no better than other members who had to pay fines incurred for nonattendanceof unionmeetings and that he also would have to pay the fines Moreover , Ward would have to comply with the organization rules and the fines would have to be paid before dues were accepted. Ward testified he told Silverstein that he was not obligated to pay fines and called to his attention " the law handed down through the Taft -Hartley Act and a decision of the National Labor Relations Board stating that fines were of no obligation , only dues, and the initiation fee." Ward told Silverstein he was not going to stand there arguing , that he had money to pay for dues and that Silverstein could " take it or leave it " Ward turned to Canin and remarked that since Silverstein did not want his money for dues they could leave Florence Hale, a clerk in the Union' s employ during the times material herein, whose duties included the collection of dues at the union office, testified that Ward came to the office in October 1951 . Without submitting his union book or any money to her , Ward asked whether it was Hale' s intention to collect fines or dues from him, stating he would not pay fines Hale testified further that she told Ward she was not asking for fines but that if he wanted to pay his dues he should give her his union book and money which he did not do Hale called Silverstein who talked to Ward . Hale denied that she obtained Ward ' s financial record card from the file cabinet . She explained that the cards are filed under the union member's number and since she did not know his number and Ward did not give her his union book which contained the number, she could not obtain his card. Hale also testified that the Union's practice which she followed was never to refuse moneys tendered by a member in payment of dues even though such member might not have attended union meetings and had been given a warning notice Further that money tendered was always applied toward the payment of dues unless the member volunteered that a certain amount be applied toward the payment of fines. Hale stated that she suggested to Ward , with respect to the matter of fines, that he see his shop steward and obtain an excuse for absences from various 3 As noted above in accordance with the Union 's rules governing meeting excuses, members absent from a meeting without having secured an official excuse were required to pay a fine of $1 for every such absence. Ward did not attend the union meetings nor did he obtain official excuses. 2 02 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings , and upon presentation of -the excuse to the Union the "whole business of fines would be cleared up " Silverstein testified that in October 1951 the office clerk called him to assist with a problem at the cashier's window. Silverstein found Ward and another unidentified person there Silverstein inquired if Ward wanted to pay dues, and if so, to submit his union book to enable them to obtain his financial record card Ward did not submit his union book but asked whether his money, if offered, would be applied toward the payment of fines first and then toward dues Silverstein told Ward that his money would be accepted in payment of dues if that was Ward's wish. Ward, according to Silverstein, broke off the discussion and left. Silverstein admitted on cross-examination that when the financial record-card of a member reveals absences from union meetings , he will routinely ask the member if he wants any of the moneys tendered to be applied toward the payment of outstanding fines Ward's testimony hereinabove noted was corroborated in all essential details by Canin who impressed me as a reliable witness. I find, based on such corroborated testimony which I credit, that in early October 1951 Ward made a valid tender of union dues. Upon leaving the union office Ward and Canin called on Vincent Brennan, the Company's personnel manager in the latter's office Ward told Brennan he was there to find out the facts regarding the "set-up [here] between the Union and the management" and Ward's obligations under the collective-bargaining agreement. Ward related the incident which had just taken place at the union office and inquired if the Company would discharge an employee whose tendered dues had been refused. Brennan read the union-shop clause in the agreement to Ward Brennan told Ward that it was his (Brennan's) responsibility to enforce the agreement and since the agreement did not mention failure to pay fines as a cause for discharge he would only enforce the agreement where there was a delinquency in dues. After some further discussion, with Ward insisting on finding out if he would be discharged for failure to pay fines, Brennan told Ward and Canin they were raising an academic point, that the Company had not received any request from the Union relating to Ward and that if there was a request for his discharge, Ward would be notified and given a full opportunity to present his case before the Company would take any action. Ward re- ported back to work. In November 1951 Ward was called to Brennan's office because his name was on a list of employees whose discharges were requested by the Union. Canin accompanied Ward as his witness. Brennan told Ward of the request for his discharge and inquired if he was going to do anything to have his name removed from the list Brennan again reviewed the terms of the collective-bargaining agreement and stated that fines did not interest him, that he was concerned solely with what was specifically included in the agreement, namely, discharge because of nonpayment of dues At the conclusion of the interview, Ward left Brennan's office with the stated intention of going to the union office 4 Ward testified that he and Canin proceeded to the union office 5 Ward stated he presented 3 months dues in cash to the clerk and requested a receipt The clerk told Ward, after looking at his financial record-card, that there were fines to be paid Ward said he was there to pay dues and not fines Silverstein, according to Ward, was drawn into the con- versation and told Ward that he had to pay fines as well as dues otherwise his dues could not be accepted. Silverstein commented that perhaps Dennis Farragher6 could "take care of this situation " Ward testified he told Silverstein he was not interested in what Farragher could take care of, he was there to pay 3 months' dues which Silverstein could either take or leave Ward stated that since Silverstein refused to accept his dues without payment of the fines, he withdrew his money and left the union office. Hale recalled that Ward was in the union office several times subsequent to October 1951, but was unable to state with certainty when she saw him there She testified that Ward never asked how much he owed for dues or fines, or the number of meetings he failed to attend. Silverstein testified that he saw Ward in the union office only once in October 1951. 41 do not credit Ward's testimony that Brennan inquired if he was willing to pay his dues; that upon Ward's affirmative reply, Brennan wanted to know if he was ready to do it then; and that Brennan instructed Ward to take the dues to the union office. - 5 The union office is located accoss the street from the Company 's store. 6Farragher is an organizer for the Union whose duties, among others , consist of handling problems and grievances of the Company's warehouse employees. BLOOMINGDALE'S 2 03 Ward' s testimony was corroborated in all essential details by Canin I find, based on such corroborated testimony , which I credit, that in November 1951 Ward tendered his union dues which Silverstein refused to accept without simultaneous payment of outstanding fines. Ward and Canin returned to Brennan ' s office and apprised him of what had taken place at the union office Canin confirmed Ward's statement Brennan thereupon instructed Ward to return to his job On or about December 4, 1951 , Ward received a letter from the Union via registered mail similar to the July 10, 1951 , letter set out in detail above . This letter advised Ward that "All dues must be paid in full , no later than December 15, 1951 ." Ward did nothing regarding the letter . He continued working in his job. In December 1951 the Union requested the Company to discharge certain named employees who were delinquent in union dues . Ward was one of the employees so named. Early in January 1951 Ward was asked to come to Brennan' s office. He was accompanied this time by Frank Morano, an employee at the Company 's warehouse and shop steward for the Union. Brennan informed Ward that the Union was requesting his discharge . Brennan again re- viewed his responsibility in the administration of the collective -bargaining agreement. He reiterated to Ward that the Company had no interest in his refusal to pay fines , that it was concerned only with dues . Brennan suggested that for purposes of convenience and in order to obviate his having to interview Ward? so often, that Ward mail his dues to the Union just as other employees do and as Ward did in August 1951 . Ward refused to take Brennan's suggestion Ward and Morano left Brennan' s office after telling him they were going to the union office. Ward testified that at the union office he again tendered enough money to the clerk to cover the union dues for the months of August through December 1951 and asked for a "specific receipt" which would show that his money was accepted for dues. The clerk spoke to Silverstein about Ward ' s request for a " specific receipt." Silverstein told Ward that his money would be accepted but the Union would allocate it its "way" and issue him a " blanket receipt." After some further discussion along the same line, Ward picked up his money and left the union office with Morano. In the main , Morano corroborated Ward ' s testimony I find based on such corroborated testimony , which I credit, that Ward in January 1952 tendered his union dues Ward and Morano returned to Brennan ' s office Ward informed Brennan of the event at the union office Morano corroborated Ward's statement Brennan told Ward to return to work with the advice that if anything further had to be done regarding the matter it would be dis- cussed with Ward At several grievance meetings held between January and June 1952 Carl Andren and Silverstein , on behalf of the Union ,inquired why Brennan did not discharge Ward as requested. The union officials insisted that fines owed by Ward was not in issue but that his discharge was being requested because of delinquency in dues Early in June 1952 Andren requested Brennan to carry out the provisions of the collective- bargaining agreement and discharge Ward Upon receiving Andren's definite assurance that the payment of fines was not involved in the Union 's request and that Ward's dues would be accepted if tendered , Brennan asked that the Union send him a written request which would take under advisement On June 17, 1952, the Union sent the following letter to the Company: Dear Mr. Brennan: Pursuant to Article II under the collective bargaining agreement on the requirement of Union Membership, the following member has not lived up to this provision and we request his discharge immediately William Ward , Department W8032-98 was suspended from Union Membership for failure to pay union dues On June 27 Ward was called to the personnel office . Canin went along with him. Ward and Canin were directed to see one Webster , an assistant to Brennan 8 Webster asked Ward about the delinquencies in his union dues and what had taken place in the past regarding this matter Webster confessed he was not too well acquainted with the subject . Ward told Webster t It was the Company's policy to interview all employees whose names appeared on the Union's lists requesting discharges for delinquency in union dues. 8 Brennan was on vacation until June 30. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if he was going to handle the matter either the Company's records should show what had taken place or Webster should in some manner have prepared himself for the discussion without requiring Ward to review the entire matter in order to bring Webster up to date Ward asked Webster if the Company called him in for the purpose of presenting any new requirements with which he would have to comply. Webster replied "no." Ward inquired if Webster had anything else in mind other than wanting to know the past events in Ward's situation Upon Webster's negative reply Ward remarked that he did not know why he was called to the personnel office and that their meeting was "inconclusive." Ward and Canin returned to the warehouse On June 30 Ward was again called to the personnel office where he and Canin , his repre- sentative, conferred with Brennan and Webster Brennan told Ward that he received a letter from the Union and offered it to Ward to read Ward refused to look at the letter and asked if it was addressed to him. Brennan told Ward that while it was not addressed to him, it concerned him as it contained a request for his discharge and thereupon read the letter to Ward. Brennan asked Ward what he had to say about the request to which Ward replied "no comment." Brennan asked Ward whether or not he intended to make any effort to tender his union dues Ward refused to comment. Ward inquired if he was being required to do anything different than in the past Brennan stated the requirements were the same, that the Company was interested only in the terms of the collective-bargaining agreement and that union fines did not concern him. Ward told Brennan that he (Brennan) knew that Ward had tendered his dues in the past. Brennan asked when was the last time Ward tendered his dues and Ward refused to answer. Brennan asked if January 1952 was the last date that Ward tendered his dues and Ward replied that Brennan knew it was. Brennan inquired if Ward felt that the last tender in January 1952 forever absolved him from again tendering dues. Ward answered "no comment." Brennan pointed out that Ward's job was involved and that it was Brennan's responsibility to administer the terms of the collective-bargaining agreement Brennan told Ward that the Union gave him assurance that the question involved, as the letter stated, "was dues only and not fines." Brennan also told Ward that the Union told him it would accept Ward's dues if tendered. Ward refused to comment. Brennan reminded Ward that he had to make a decision on the Union's request and in view of its assurances and the fact that Ward refused to give Brennan his side of the story, there was no alternative left to Brennan but to comply with the request. Brennan asked Ward and Canin if they would like to discuss the matter privately outside of Brennan's office They did not accept this suggeistion. In a further effort to elicit Ward's story, Brennan mentioned that Ward's job was at stake and if Ward refused to comment Brennan would have to go through with the discharge request. Ward did not answer nor did Ward respond when Brennan said some of the men in the warehouse felt that Ward was "using this as a technical dodge to avoid paying his dues " After about one-half hour with Brennan unsuccessfully attempting to elicit Ward 's explanation , Brennan told Ward there was no choice left but to follow the Union's request under the terms of the collective- bargaining agreement Brennan asked Ward if money was a problem to him in the tendering of dues Ward stated his ability to pay was of no concern to the Company and he refused to answer further A deadline of 6 p in that night was then set for Ward to meet the re- quirements of tendering the dues, otherwise, he would face discharge from the Company's employ Ward said "no comment Upon ascertaining the following day that Ward had said or done nothing, Ward was called from the warehouse to Smith's office in the personnel department and told he was being discharged for failure to tender union dues, Ward was asked to sign his final pay slip and on it he wrote "being discharged for the nonpayment of union dues." Ward has not worked for the Respondent Company since July 1, 1952. Conclusions (a) With respect to the alleged violations of Section 8 (a) (3) and (1) of the Act by theCompany The complaint alleges that the Company discharged Ward on or about June 30, 1952, and thereafter refused to reinstate him because of his loss of membership in the Union although it then had and still has reasonable grounds for believing that Ward's membership in the Union was terminated for a reason other than his failure to tender the periodic dues. As found above, in November and December 1951, when the Company received written requests from the Union to discharge Ward pursuant to the valid union-security clause in BLOOMINGDALE'S 2 05 the collective-bargaining agreement it did not act on such requests automatically and effect the discharge On the contrary, in line with its policy and practice it interviewed Ward and investigated all of the circumstances surrounding the Union ' s request Receiving assurances from Ward and his corroborating witnesses on these occasions that he (Ward) tendered dues which were not accepted because he failed to pay outstanding fines, the Company re- fused to act on the Union' s requests and continued Ward in his job In June 1952 , confronted with a new request from the Union for Ward 's discharge and not content with the Union' s oft- repeated verbal and written assertions that the payment of fines was not involved in this request, the Company again interviewed Ward. Brennan made clear to Ward what the Union had assured him, namely, that his dues would be accepted if tendered and that the only issue which the Union had with Ward was his delinquency in dues and not his failure to pay fines. Ward did not protest that his failure to pay fines was the underlying motive in his suspension from union membership In fact, Ward was completely uncoopera- tive with Brennan in the latter 's efforts to ascertain the true picture in the Union 's request and even after he was warned that his job was " at stake," Ward continued either to refuse to answer Brennan's questions or answered them with a curt " no comment." The course of the Company's actions with respect to Ward indicates clearly that it went far beyond any duty imposed on it by law. In the Westinghouse case , 96 NLRB 522, enfd 203 F. 2d 173 (C. A. 9), where the Company knew that an employee was expelled from the Union because he did not pay a fine but several months later was told by the Union upon inquiry that its request for the employee's discharge complied with the terms of the union- security contract and opportunity for membership in the Union was extended to the employee without discrimination, the Board held "in these circumstances, we do not believe that the Company was required to explore the implications of [the employee 's] protestation , a matter which would necessarily lead to unwarranted intrusion in the internal affairs of the union." See Air Reduction Co., Inc., 103 NLRB 64; Kaiser Aluminum and Chemical Corp., 98 NLRB 753; Standard Brands, Inc., 97 NLRB 737; Chisholm-Ryder Co., Inc., 94 NLRB 508; Pressed Steel Car Co., 89 NLRB 276. In view of the foregoing and under all of the circumstances present here, I find that the Company on June 30, 1952, did not know or have reasonable grounds to believe that the Union sought Ward's discharge for reasons other than his failure to tender the periodic dues and will hereinafter recommend that those paragraphs of the complaint alleging that the Company committed unfair labor practices be dismissed. (b) With respect to the alleged violation of Section 8 (b) (2) of the Act by the Union The complaint alleges that on or about June 30, 1952, the Union caused the Company to discharge Ward because of his nonmembership in the Union, notwithstanding that Ward's membership was terminated for reasons other than his failure to tender the periodic dues As found above, Ward tendered dues in October and November 1951 and early January 1952 which the Union refused to accept because of Ward ' s failure to pay outstanding fines or in lieu thereof to obtain valid excuses for not attending union meetings . There would be no problem here if the Union caused Ward ' s discharge while such conditions continued to exist , for it is clear that the Union would have been asking for Ward ' s discharge because of his nonpayment of fines, a reason which the Act does not countenance . See Westinghouse Electric Corporation, supr ; The Eclipse Lumber Company, 95 NLRB 464 enfd 199 F. 2d 684 (C. A. 9). The Electric Auto-Lite Company, 92 NLRB 1073; Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883. Indeed, if such conditions continued to exist, in my opinion it would not have been incumbent upon Ward to " tender" in order to come within the protection of the Act, for as the Board held in several cases , The Eclipse Lumber Company, supra- The Baltimore Transfer Company, 94 NLRB 1680, and the Westinghouse Electric Corporation , supra , " a formal tender is . unnecessary in cases involving pro- viso (B) where the circumstances indicate that such a tender would have been a futile gesture." But we are confronted in the instant matter with additional facts. Subsequent to January 1952 the Union changed its position regarding the acceptance of dues from Ward and told the Company on various occasions that it was not interested in the payment of fines by Ward and would accept his money for dues if tendered . It is not controlling that the Union- did not make known its changed position to Ward directly , the fact is, as found above, that in June 1952 Brennan told Ward in no uncertain terms what was then the posture of the situation and the Union's assurances that tender of dues at that time would not only have 337593 0 - 55 - 15 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stayed its request for discharge but also in all probability would have obviated the necessity to discharge Ward 9 Thus, as a result of the Union's affirmative conduct and statements, it was incumbent upon Ward to go forward with the tender of dues and he could no longer rely on the Union's past statements to him that it would not accept his dues unless he also paid fines. Of signi- ficance herein is Ward's attitude and conduct at his meeting with Brennan preceding his discharge, set forth in detail above I find that Ward demonstrated by his statements and conduct that he had no intention of tendering dues to bring his membership in the Union into good standing and that he mistakenly relied upon the Union's past conduct and his belief that by the institution of these proceedings he could retain his employment. Accordingly, I find that Ward having failed to tender the dues on June 30, 1952, his discharge caused by the Union was not in violation of Section 8 (b) (2) of the Act. See Air Reduction Co., Inc., supra. Also alleged in the complaint to be a violation of Section 8 (b) (2) of the Act is the Union's attempt to cause the Company to discharge Ward since on or about January 15, 1952, for reasons other than his failure to tender dues As heretofore found, subsequent to January 1952, the Union changed its position regarding the acceptance of dues from Ward and unequivocally let it be known that it would accept his money for dues if tendered and that it was not interested in the payment of fines. The last overt act by the Union, prior to January 1952, in its attempt to cause the Company to discharge Ward for reasons other than his failure to tender dues was in December 1951 when Ward was included in a list of names sent by it to Brennan. The charge in the instant matter made by Ward was filed in the Regional Office of the Board on July 3, 1952, and served ca the Union by registered mail on July 8, 1952. Thus it is seen that the alleged unfair labor practice of attempting to cause Ward's discharge occurred more than 6 months prior to the filing of the charge and is barred by the provisions of Section 10 (b) of the Act. 10 Accordingly, it will be hereinafter recommended that this allegation of the complaint be dismissed. (c) With respect to the alleged violation of Section 8 (b) (1) (A) of the Act by the Union Finally, the complaint alleges that since on or about January 15, 1952, the Union has re- strained and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act by applying moneys tendered to them in payment of periodic dues to the payment of fines imposed upon them for nonattendance at union meetings, and thereafter requesting the Company to discharge said employees for delinquency in the payment of periodic dues under the union-shop agreement between the Respondents, and by threatening said employees with discharge under said agreement for nonpayment of said dues 91n this regard it is interesting to note Brennan's testimony, which I credit, that included on about a half dozen lists from the Union requesting discharge were the names of several employees who claimed that the real reason for the discharge request was their failure to pay fines. In each instance, upon Brennan's advice, the employee tendered money for dues which the Union accepted and the employees' names were removed from the discharge list. Brennan stated that to his knowledge no employee who tendered his dues has ever been dis- charged, nor has he received complaints from employees discharged because of delinquency in union dues, that the real reason for the discharge was their failure to pay fines. Of note also is the testimony of Canin, who was friendly with Ward, that his dues were accepted even though he admittedly did not attend some union meetings. 10 The pertinent provision of Section 10 (b) of the Act, from which the above-quoted language is taken, is the following: .That no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, .. . UPSHUR RURAL ELECTRIC COOPERATIVE CORPORATION 207 No proof was adduced by the General Counsel that the Union during 1952 or at any time for that matter applied moneys as alleged in the complaint 11 and thereafter requested the Company to discharge employees for delinquency in dues. The proviso of Section 8 (b) (1) (A ) of the Act states: ... This subsection shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. Under the terms of the proviso the Unionhas the right to fine its members for not attending union meetings and to go so far as to suspend them from membership for nonpayment of fines . However , threatening employees with the loss of their employment if they fail or re- fuse to pay the fines where they continue to pay or tender the periodic dues is proscribed by the Act . See Namm's Inc., 102 NLRB 466. Standing alone the "Warning" to employees that no further dues would be accepted if they failed to pay fines or in lieu thereof present valid official meeting excuses is not a threat of loss of employment . Here, however , the "Warning" was followed by a letter , such as the one sent to Ward on November 30, 1952 . When the documents are read together it is re- vealed that if an employee fails to pay fines, no further dues will be accepted from him thus resulting in a delinquency in dues, automatic suspension from union membership, and . obliged to leave the job." Clearly, this spells out a threat of loss of employment. Other than the Union's letter to Ward, dated November 30, 1951, the General Counsel did not adduce evidence that after that date the Union sent a similar letter either to Ward, or to any other employee . That date however , being more than 6 months prior to the filing of the charge herein, the alleged unfair labor practice of violation of Section 8 (b) (1) (A) is barred by Section 10 (b) of the Act and I so find. CONCLUSIONS OF LAW 1. The operations of the Company , Bloomingdale' s,constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Distributive , Processing and Office Workers of America, Local 3, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and the Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b) (2) of the Act. [Recommendations omitted from publication.] itIt is noted that Ward never left any money with the Union in October and November 1951 or early January 1952. UPSHUR RURAL ELECTRIC COOPERATIVE CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 324, AFL. Case No. 16-CA- 503. November 25, 1953 DECISION AND ORDER Upon a charge filed by International Brotherhood of Electrical Workers , Local Union No. 324, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, through the Regional Director for the Sixteenth Region (Fort 107 NLRB No. 60.