Bedding, Curtain & Drapery Workers Union

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request, with Die and Tool Makers Lodge No. 113, International Association of Machinists , AFL, as the exclusive repre- sentative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, or other conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is. All toolroom employees, experimental employees, and machine repairmen at our Chicago, Illinois, plant, excluding office clerical employees, pro- fessional employees , guards, and supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain with us, or refuse to bargain collectively with said Union as the exclusive representative of the employees in the bargaining unit set forth above. SUPERIOR SLEEPRITE CORPORATION, Employer. 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. LOCAL 140, BEDDING, CURTAIN & DRAPERY 'WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO and MARIE J. KUHLMAN, ANNETTE CIERVO SCANDARIATO AND MARGARET KARLE . Cases Nos. 2-CB-925, t'-CB-926, and 2-CB-958. July 03, 1954 Decision and Order On January 19, 1954, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent, had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting 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 recommen- dations of the Trial Examiner with the exceptions and modifications noted below. 109 NLRB No. 56. LOCAL 140, ETC. 327 1. We agree with the Trial Examiner that the Respondent, in de- manding that The Englander Company, Inc., discharge the com- plainants, Kuhlman, Scandariato, and Karle, because they lost their membership in good standing in the Respondent, attempted to cause the Company to discriminate against these employees, and thereby violated Section 8 (b) (2) of the Act. We further find that, by this conduct, the Respondent also restrained and coerced employees in the exercise of their statutory rights in violation of Section 8 (b) (1) (A) of the Act. Like the Trial examiner, we find that the complain- ants had performed their statutory and contractual obligation to tender their periodic dues uniformly required as a condition of mem- bership and employment and that therefore they were not vulnerable to discharge under the Respondent's union-security agreement with the Company. However, we do not reach this conclusion on the Trial Examiner's theory that the complainants' old checkoff authorization cards operated as continuing tenders of their dues obligation or that the complainants on December 13, 1952, had "substantially" complied in good faith with their duty to tender their dues.' Rather, we rely on the ground forcefully advanced by the General Counsel that the complainants on the specified date actually made a timely tender of their October, November, and December dues, payment of which was all the Respondent could lawfully require as a condition of employ- ment.2 As fully discussed in the Intermediate Report, the complainants on December 13, 1952, sent the Respondent money orders in payment of their October, November, and December dues. The Respondent re- turned the money orders with the statement that "You owe, not merely dues for the above three months, but also for the months of April and May of 1952. You are, therefore, under the provisions of our By- laws, no longer in good standing." Thereafter, the Respondent de- manded the complainants' discharge. However, the October, Novem- ber, and December dues. were the only dues the complainants owed that accrued during the term of the union-security agreement. Under settled law, enunciated in numerous cases beginning with Colonie Fibre,' the Respondent could not require the complainants to pay the April and May dues, which accrued before the union-security agree- ment was made, in order to retain their jobs. The Board and the courts have consistently held that a union-security agreement may not be given retroactive effect to condition employment upon the payment of dues obligation incurred during a period when there was no con- I view of our disposition of the case , we find it unnecessary to pass upon the validity of the Trial Examiner's grounds for his determination. 'Although the Trial Examiner found it unnecessary to pass upon this contention, he volunteered the opinion that it lacked merit. s Colonic 'Pibre Co , 69 NLRB 589 ; 71 NLRB 354, enfd . 163 F. 2d 65 (C. A. 2) ; Interna- tional Union, United Automobile, Aircraft and Agricultural Implement Workers of America,` 010, et at., 92 NLRB 968, enfd . 194 F. 2d 698 (C. A. 7) ; Namm's, Inc., 102 NLRB 466. 328 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD tracttial obligation to maintain membership as a condition of em- ployment., In these circumstances, we find that the complainants' offer to pay the October, November, and December dues was a full performance of their statutory obligation to maintain membership required by the union-security agreement. It is undisputed that, if the April and May arrears are disregarded in determining the timeliness of the complainants' tender, the Decem- ber 13 tender was within the period prescribed by the Respondent's constitution. Under the Respondent's interpretation of the relevant constitutional provision,5 a member falls into bad standing if he is in arrears 2 months, not necessarily consecutive, and before liquidating these arrears, defaults in paying a third month's dues by the 20th day of that month. As the complainants were not obligated to pay April and May dues as a condition of employment, we find that their ten- der on December 13 was timely and protected them from discharge. The Respondent does not question the validity of the principle of the Colonie Fibre line of cases cited above but argues that it is not ap- plicable to the situation here presented. It urges that, unlike the facts in the cited cases, it demanded the complainants' discharge for losing membership in good standing, not because they failed to pay their April and May dues, but only'because they failed to pay their October dues which accrued during the term of the agreement. It concedes, however, that it took into account the April and May arrears-in de- termining that the complainants' default in paying their October dues put them in bad standing. We find no significant difference between demanding the discharge of employees who lost membership in good standing for failing to pay dues that accrued during a period when there was no statutory or contractual obligation to maintain membership in good standing as a condition of employment and demanding the discharge. of, employ- ees who lost good standing during the contractual term only because the union took into account their dues arrears that accrued before the contract went into effect in determining their membership status. In both instances, the employees are penalized for not paying dues at a time when they were legally privileged to refuse to do so without jeopardizing their jobs. In the present case, the net effect of the Re- spondent's consideration of the April and May dues was to shorten the grace period for paying dues to which the complainants would other- wise have been entitled. Such a result, which would subject the com- plainants to discharge, we find is not sanctioned by the Act. Apart from the foregoing, the Respondent contends that it did not violate Section 8 (b) (2) or (1) (A) of the Act because its demand ,for the complainants' discharge and request for arbitration were made ' Ibid. 6 Section 5 (b). LOCAL 140, ETC. 329 in good faith pursuant to its alleged contractual rights and were not accompanied by threats of strike or economic reprisal. We find no merit in this contention. In our opinion, the Respondent's efforts pursuant to a union-shop agreement to secure the discharge,of em- ployees which the Act does not permit, plainly constitute an, attempt to cause discrimination within the meaning of Section 8 (b) (2) of the Act and restraint and coercion within the meaning of 8 (b) (1) (A) of the Acts Accordingly, we find that the Respondent, in violation of Section 8 (b) (2), attempted to cause The Englander Company to discrimi- nate against employees Kuhlman, Scandariato, and Karle in viola- tion of Section 8 (a) (3) and to discriminate against these employees with respect to whom membership in the Respondent was terminated on some ground other than their failure to tender the periodic dues uniformly required as a condition of retaining membership. We further find that this conduct amounted to restraint and coercion prohibited by Section 8 (b) (1) (A) of the Act. 2. For the reasons discussed in the Intermediate Report, we agree with the Trial Examiner that the Respondent violated Section 8 (b) (1) (A) and (2) of the Act by (a) requiring The Englander Com- pany under the 1952-1953 and current contracts to contribute moneys to the Security Fund which, as administered, restricted benefits only to members of the Respondent in good standing and thereby imposed discriminatory conditions of employment; and (b) the application of these discriminatory conditions of employment to Scandariato who, as a result, suffered a denial of benefits because of her alleged loss of membership in good standing.' We further find, in agree- ment with the Trial Examiner, that the Respondent violated Section 8 (b) (1) (A) by causing the Security Fund to cancel on its records the participation rights of Kuhlman, Scandariato, and Karle because they allegedly lost their membership in good standing." Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 140, Bed- 9 Cf. International Union, United Automobile , Atrereft and Agricultural Implement Workers of America CIO, et al., 92 NLRB 968, enfd. 194 F. 2d 698 ( C. A. 7) ; Plywood Workers Local Union No . 2498, 105 NLRB 50. 7 After the hearing in this proceeding was opened , the Respondent took steps to pay Scandariato the Security Fund benefits . As of that time it appears that Scandariato had been paid her hospital and surgical expenses , and her claim for disability benefits was for- warded to the insurance carrier. Manifestly, this action does not render the case moot Cf. N. L. R. If. v. Mewia Textile Mills, 339 U. S. 563. 8 As no exception has been taken to the Trial Examiner's finding that the record did not support the allegations of the complaint that the Respondent violated Section 8 (b) (1) (A) by promising Scandariato Security Fund benefits if she assisted the Respondent in its strike activities, we adopt this finding without comment. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ding, Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, New York, New York, and its officers, representa- tives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause The Englander Company, Inc., to discriminate against employees in the appropriate bargaining unit represented by the Respondent at the Company's Brooklyn plant, by requiring the Company to contribute sums of money to Local 140 Security Fund for the purpose of providing benefits to employees in said appropriate bargaining unit, unless provision is made in the administration and operation of said Fund, or otherwise, for the pay- ment of benefits on a nondiscriminatory basis without regard to the membership status, or want of it, of employees in the said appropriate unit. (b) Taking any action or engaging in any conduct in relation to the Local 140 Security Fund that is calculated to deny, or withhold from, any employee in the aforesaid bargaining unit because of his lack of good standing membership in the Respondent, the payment of any benefits that would otherwise be due or payable to him from said Fund. (c) In any other manner causing or attempting to cause The Eng- lander Company, Inc., to discriminate against any of its employees with regard to their hire or tenure of employment or term or condition of employment, except under the conditions and upon the ground authorized by Section 8 (a) (3) and 8 (b) (2) of the Act. (d) By means of the foregoing or in any like or related manner restraining and coercing employees of the Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent such rights may be validly affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in 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 The Englander Company, Inc., in writing, that it has no objection to the employment of Marie J. Kuhlman, Annette Ciervo Scandariato, and Margaret Karle and that it withdraws its demands for their discharge. (b) Notify the Local 140 Security Fund, in writing, that it with- draws all objection to the full participation in benefit rights as em- ployees covered by said Fund, of Marie J. Kuhlman, Annette Ciervo Scandariato, and Margaret Karle on the basis of the contributions made to said Fund on behalf of said employees, and that it desires that their full rights and interests in the Fund be restored to them ab initio as if their rights and interests had not been canceled for loss of good -standing.in the Union. LOCAL 140, ETC. 331 (c) Take all necessary steps within its control to effectuate the restoration of all rights and interests of the above-named employees to participate in the benefits of the aforesaid Security Fund. (d) Make Annette Ciervo Scandariato whole for any loss • of money she may have suffered as a result of the discrimination against her, in the manner provided in "The Remedy" section of the Inter- mediate Report. (e) Post at its business offices in New York, New York, copies of the notice attached to the Intermediate Report as Appendix A.9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official repre- sentative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Mail to the Regional Director for the Second Region signed copies of the notice attached to the Intermediate Report as Appen- dix A for posting, the Company willing, in places where notices to employees at the Brooklyn plant of The Englander Company, Inc., are normally posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed as provided in the paragraph just above, be forthwith returned to the Regional Director for said posting. (g) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order as to what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated Section 8 (b) (1) (A) of the Act by promising Scandariato Security Fund benefits if she assisted the Respondent in its strike activities. CHAIRMAN FARMER, concurring : I agree, of course, that a union cannot lawfully demand the dis- charge of an employee for failing to pay union dues covering any period prior to the execution of a union-shop contract. However, I do not find it necessary to consider the provisions of the Union's constitution relating to loss of good standing. We are not concerned here with whether or not these employees were union members in good standing, but solely with whether or not the Union had the O This notice, shah be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and' Order." In the event that this Order is enforced by 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 , Enforcing an Order." 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right under the provision of Section 8 (a) (3) to demand their dis- charge. I think it clear beyond argument where there exists a valid union-shop contract that a union can insist upon the discharge of an employee only if the employee refuses to pay his initiation fees and dues. Here, the three employees made a proper tender to the Respondent Union of all the dues which they were legally required to pay as a condition of employment. After this offer to pay their dues, the Union nevertheless insisted that these employees be dis- charged. I regard this as a clear violation of Section 8 (b) (2), and I would so find. I deem it irrelevant whether or not these three em- ployees were, at the time the Union demanded their discharge, mem- bers in good standing as judged by the constitution or bylaws of the Union. They tendered their dues prior to the demand for their dis- charge, and in my opinion, this was all they were obligated to do. In all other respects, I join in the majority decision. MEMBER MURDOCK, concurring : I am, as are my colleagues, satisfied that the Union violated Sec- tions 8 (b) (2), and 8 (b) (1) (A) in this case by demanding the discharge of employees Kuhlman, Scandariato, and Karle. I reach this conclusion, however, on the basis of the evidence in the record, detailed in the Intermediate Report, which persuades me that the real reason for the Union's demand that the Employer discharge these employees is, as the General Counsel contends, their refusal to sign new checkoff authorization cards permitting the deduction of assess- ments rather than their failure to pay their dues. The record is clear, as the Trial Examiner found, that the em- ployees acted in good faith and reasonably believed that their tender of dues for the months of October, November, and December, 1952, was timely and included all of the dues then owing. Wien informed by the Union that they owed dues for the months of April and May, they made an additional tender to cover these dues. I find it unnec- essary to decide for the purposes of this case whether the Union was correct in insisting that the months of April and May could validly be counted in determining whether and how long these employees had been in arrears. Certainly, their obligation to pay dues for these 2 months was extremely doubtful. The Union had conducted a strike during this period and its normal policy was not to require payment of dues during a strike. I cannot believe that a union interested only in collecting dues would arbitrarily reject the tenders made in this case by employees who, so far as the record shows, had never been chronic delinquents. On the basis of the evidence set forth by the Trial Examiner, I find rather that the Union's insistence upon their discharge was the result of hostility toward them growing out of LOCAL 140, ETC. 333 their challenge to the Union's right to collect dues under a new form of authorization card. I would also find, in agreement with the Trial Examiner and my colleagues, that the Union violated Section 8 (b) (1) (A) and (2) by causing the Employer to discriminate against nonmember em- ployees through the administration of the Security Fund. I would not, however, find a violation of Section 8 (b) (2) were I not con- vinced that the Employer also violated Section 8 (a) (3). It is clear from the record, as the Trial Examiner found, that the Em- ployer was on notice that the Fund was being administered in a dis- criminatory manner. Moreover, I have serious doubts whether an employer can contribute money as was done here for the benefit of its employees without accepting responsibility for any discrimination which might result. This is particularly true in the instant case where the Employer had no representative of its own as a trustee in the Fund and the Fund, in practice, was administered by the Union. Section 302 of this Act, it may be noted, makes unlawful the establishment of such a fund unless employees and employers are ',equally represented in the administration of such fund." In view of the foregoing, I find a violation of Section 8 (b) (2) on the ground that the Union through the administration of the fund caused the Employer to discriminate against its employees in violation of Sec- tion8 (a) (3). Intermediate Report STATEMENT OF THE CASE Charges having been filed against the Respondent Union, above named, by Marie J. Kuhlman in Case No. 2-CB-925, Annette Ciervo Scandariato in Case No. 2-CB-926, and Margaret Karle in Case No. 2-CB-958, and the three cases having been duly consolidated, the General Counsel issued a complaint, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint, as amended at the hear- ing, alleged in substance that the Respondent violated Section 8 (b) (1) (A) and (2) of the Act, by (a) attempting to cause The Englander Company, Inc., herein called the Company, on or about January 14, 1953, discriminatorily to discharge the charging parties above named; (b) requiring the Company to contribute money to a welfare plan, known as Local 140 Security Fund, covering all the Company's employees in the appropriate unit for which the Respondent acts as exclusive bar- gaining agent, while maintaining, operating, and administering the Fund only for the benefit of its own members in good standing; and (c) denying the right of participation in said Fund to the charging parties for the same discriminatory rea- sons that induced it to seek their discharge. The complaint alleged additionally that the Respondent further violated Section 8 (b) (1) (A) by promising"Scan- dariato the payment of benefits from said Fund on the condition that she assist the Respondent in its strike and concerted activities. In its answer, the Respondent denied generally the material allegations of the complaint imputing to it the commission of unfair labor practices. Pursuant to notice, a hearing was held between November 23 and 25, 1953, at New York City, before the undersigned, Arthur Leff, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Charging Parties were represented at the hearing by counsel. Full opportunity was afforded all parties to examine and cross-examine witnesses, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. Following the hearing, a brief was received from the Respondent. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Englander Company, Inc., a Delaware corporation with its principal office and place of business at Chicago, Illinois, is engaged in the manufacture, sale, and distribution of beds, bedding, and related products. It maintains 16 plants and subsidiary offices in 12 States of the United States, including a plant at Brooklyn, New York, its only plant involved in this proceeding. During 1952, the Company manufactured products valued in excess of $1,000,000, of which approximately 25 percent was transported from its plants in interstate commerce to States of the United States other than the States in which its plants are located. Shipments during that year from its Brooklyn plant to States of the United States other than New York exceeded $25,000 in value. During that year, the Company's purchases of materials for use at its Brooklyn plant exceeded $1,000,000 in value, approximately 90 percent of such materials being transported to its Brooklyn plant from States other than the State of New York. H. THE LABOR ORGANIZATION INVOLVED Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Work- ers of America, CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. As to the allegation that the Respondent illegally attempted to cause the Company to discharge Kuhlman, Scandariato, and Karle 1. The relevant facts For some years the Union and the Company have been parties to collective-bar- gaining contracts covering an appropriate unit of the Company's employees at its Brooklyn plant. The contracts have been for annual terms ending on March 31 of each year. At the expiration of the contract for the term ending March 31, 1952, there was a strike which lasted from April 1 to May 17, 1952, when a new contract was executed. The new contract-the one with which we are here concerned- contained a union-shop provision, conforming to the statutory standards for validity, that inter alia required employees to maintain their good standing membership in the Union as a condition of employment. Marie Kuhlman, Annette Scandariato, and Margaret Karle-all of whom have seen long service with the Company'-are employees within the appropriate bar- gaining unit, and, as such, subject to the union-shop provision of the contract. All three; were members of the Union, when the 1952-1953 contract was entered:--into. They had joined long before that time, and had executed checkoff cards authorizing the Company to deduct from their wages and to remit to the Union their monthly dues. Their checkoff authorizations were regarded by all concerned as still in full force and effect when the 1952-1953 contract was signed. It has been, and still is, the practice of the Union to submit to the Company each month a list setting forth the amount of dues and assessments-including, when occasion demanded it, arrearages of dues-to be checked off from the wages of employees in the bargaining unit. Before the 1952-1953 contract, the Charging Parties' obligations to the Union for dues and other charges had always been collected through that procedure. At the end of March 1952, when the contract for the prior year terminated, Kuhlman and Karle were current in the payment of their union dues. Scandariato, who had been absent from work because of illness in March, owed dues for that month. During the months of April and May 1952-the months of the strike-the Union made no attempt to collect dues from its members employed by the Company. Ber- nard Minter, the Union's business agent, testified that the abstention of dues col- lections during a strike was in conformity with the Union's customary policy. The Union's constitution authorizes its executive board to waive members' dues obliga- tions incurred during a strike period. In this instance, however, according to Minter, the Union's executive board took no formal action to cancel striking mem- bers' dues obligations for the months of April and May. But though no request 'Kuhlman has been employed by the Company for 12 years,- Scandariato for 29, and Karle for 15. LOCAL 140, ETC. 335 for payment of such dues was ever made upon members after as well as during the strike, and no attempt was made to collect such dues as arrearages through the checkoff process, the Union continued, according to Minter, to look upon these dues as outstanding obligations. Minter conceded that most of the employees in the unit, numbering well over 200, have not paid their dues for the months of April and May 1952 to this day. He explained the Union's failure to request payment or to seek collection on the ground that the Union to date has considered it inadvis- able to demand clearance of the 2 months' arrearages, because for a period after the strike there had been levied upon employees strike assessments in addition to their regular dues, and because thereafter the employees were engaged in part-time work and could ill afford to meet the burden of their arrearages. At the conclusion of the strike, following the return of the employees to work, the practice was resumed of collecting dues from employees pursuant to the checkoff au- thorizations on file with the Company. Dues for the months of June, July, August, and September were checked off by the Company from the wages of Kuhlman, Scandariato, and Karle, and remitted to the Union. In addition, pursuant to a re- quest made by the Union, the Company in July 1952, deducted from Scandariato's wages for remittance to the Union an extra $3 to cover dues arrears for the month of March 1952-the month for which no dues had been deducted from Scandariato's wages under the previous contract because of her absence from the plant due to illness. About the middle of September 1952, the Union voted to levy a special strike as- sessment upon its members to support a strike it was conducting at other plants in the industry. The Union requested the Company to deduct from the wages of em- ployees the sum of $2 a week for 8 weeks and $1 a week for 10 weeks to cover that assessment2 In the past the Company had honored without question the Union's requests for the deduction of assessments under existing checkoff authoriza- tions. But after about the second week of deductions of the current assessment, the Company raised a question about the propriety of continued deductions. The Com- pany informed the Union that some of its employees had voiced objections to that practice, and pointed out to the Union that many of the checkoff authorizations it had on file, particularly the older ones, made no express provision for the withhold- ing of wages to cover assessments . The Company also pointed to what it consid- ered to be other shortcomings in the form of at least some of the authorization cards on file with it. It informed the Union that it would not continue to make further deductions unless it received authorizations in proper form. In late September or early October of 1952 the Union distributed to the Company's employes through its shop steward new checkoff authorization forms which the em- ployees were requested to sign. These forms specifically made provision for the deduction of assessments as well as monthly dues. The new forms were promptly signed by most of the employees, but a small group, including the three Charging Parties, declined to sign. When Kuhlman, who appears to have been the leader of the dissident group, informed Shop Steward Wright in the presence of other em- ployees that she would not sign the new card unless it was worded differently, Wright remarked, "We will see about that." When Scandariato told Wright she did not think she would sign, Wright said, "You better sign or else." "Or else what?" asked Scandariato. "Then you wouldn't be in good standing with the Union," replied Wright. At a union meeting held several days after the cards were distributed, at which, according to Business Agent Minter, he informed the employees- that the Company had stated it would not continue to deduct dues and assessments unless new cards were signed, Minter expressed anger with Kuhlman when she openly stated that, while prepared to pay the current assessment, she would not sign a card in that particular form' Up to that time, Kuhlman's relations with Minter and Wright had been friendly. Thereafter they refused to speak to her. The new checkoff authorizations were eventually signed by all employees except the 3 Charging Parties and 6 others. The three Charging Parties have not to this day revoked their old checkoff authorizations cards which are still on file with the Company. Nor have they otherwise indicated either to the Company or to the Union an unwillingness to have the Company continue to check off their dues as it had done in the past. They were never specifically notified by the Union that in 'At that time there were on file with the Company checkoff authorizations from all employees in the appropriate unit 8 After the meeting Kuhlman was approached by Union President Tischler and by an executive board member who urged her to change her mind, but she remained steadfast in her position , objecting particularly to the unlimited assessment provision on the authoriza- tion card. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the future they would be expected to make their dues payments directly to the Union. When Kuhlman noted that her dues were not checked off in October, she called at the Company's office and spoke to Plant Manager Ferdinand about it. Ferdinand told her that the Union had notified him to discontinue checking off her dues because she had not signed a new authorization card. Kuhlman advised Ferdinand that she wanted the Company to continue checking off her dues under her old card. But Ferdinand informed her that he could not do so unless she signed the new card, as that was what the Union had stated. Although Scandariato and Karle did not themselves inquire of the Company as to its reason for discontinuing dues deductions, it appears that they were aware of Kuhlman's conversation with Ferdinand and assumed that the same reason applied to them . The Union made no request upon the Charging Parties for the payment of dues during October. However, without notifying the Charging Parties that they were in default, and un- known to the Charging Parties, the Union on November 1, 1952, caused to be noted on the records of the Security Fund-of which, more later-that their interest in the Fund had been canceled , presumably on the theory that they were no longer members of the Union in good standing. In November and in December, the Company also failed to check off dues from the wages of the Charging Parties and from the six other employees who had executed new checkoff authorization forms. The Union's internal regulations governing membership standing are set forth in section 5 of its constitution, reading as follows: (a) Every member shall pay to the Union monthly dues in amounts fixed by the Membership body. Every member shall likewise pay assessments to the Union as and when adopted and passed by the Membership. (b) Any member who falls in arrears in the payments of his dues in excess of the twentieth day of the third month of such arrearage, shall be considered to be a member not in good standing. (c) Any member who shall fail to pay his dues for any current month by the twentieth day of the month, or shall fail to pay any assessment and/or other financial obligation to the Union by the due date thereof, shall be notified by letter that he is not in good standing. (d) The Executive Board shall have the power to waive the application of 5 (a) and (b) as to any member who shall be ill or on strike, or for other good and sufficient cause. According to Business Agent Minter, the provisions of paragraph 5 (c) above are applied by the Union in practice. The determination of whether such employees are or are not members in good standing is made solely on the basis of the provisions set forth in paragraph 5 (b) of its constitution . That paragraph is construed by the Union as placing a member in bad standing when he accumulates 2 months of dues arrears, not necessarily consecutive and no matter how far back incurred, and then, before liquidating such arrears, fails to pay a 3rd month's dues by the 20th day of the month for which it is due. Prior to December 13, 1952, the Charging Parties had received no notice from the Union that they were not in good standing. On that day each of the Charging Parties, as well as each of the 6 other employees who had not signed the Union's new form of checkoff authorization , mailed to the Union her money order for $21, of which $9 was to cover her dues for the months of October, November , and Decem- ber, 1952, and the balance her union assessments that had become payable for such months. Under date of December 19, 1952, the Union returned the money orders to the nine employees, sending to each a letter identical in form. The one to Kuhlman follows: DEAR Miss KUHLMAN: We have your letter of December 13, 1952, enclosing three months' dues for October, November and December. We are herewith returning your money to you. Apparently you are under a misunderstanding as to your membership status You owe, not merely dues for the above three months, but also for the months of April and May of 1952. You are, therefore, under the provisions of our By- Laws, no longer in good standing. If you wish to make application for reinstatement , we would suggest that you appear before the Local Executive Board. If you will get in touch with our office, we will inform you of the date and time of the next meeting. Sincerely yours, ALEX SIROTA, Manager. LOCAL 140, ETC. 337 The Union's letter of December 19 was the first notice to these employees that the Union considered them in dues arrears for the strike months of April and May. The employees made no attempt to appear before the Local 's executive board, as was suggested in the Union's letter. Instead, on January 9, 1953 , through David Siskind, the attorney retained by them, the 9 employees retendered to the Union the $21 money orders they had previously submitted , and, in addition, this time, money orders in the amount of $6 each to cover dues for the months of April and May 1952. In his forwarding letter, Mr. Siskind took issue with the Union's assertion that the employees were in default in the payment of dues for the months of April and May, pointing out that no dues for such months had been requested or collected from,other employees, and contended that the Union by its conduct had waived payment for sucl% months. Mr. Siskind stated, however, that "to avoid any question as to [his] clients' good faith," he was tendering the dues for the months of April and May. He requested the Union to acknowledge his client 's good standing with the Union, ad- vising the Union that if it failed to do so, he would be compelled to take other steps to protect his clients' interests. On the same day, Mr. Siskind wrote the Company, en- closing a copy of his letter to the Union, and advising the Company that any attempt to obtain the discharge of his clients on the ground they were not in good standing would be resisted by the filing of unfair labor practice charges against both the Union and the Company. Under date of January 17, 1953 , the Union's attorney wrote to Mr. Siskind , return- ing to him the money orders he had forwarded , and explaining the Union 's refusal to accept the tender on the following basis: As the Union has previously advised your clients, they are no longer members in good standing of the Local . They were invited to attend an Executive Board meeting of the Local to discuss their membership status with the Board, but have apparently declined that invitation. Before the receipt of letter just referred to, Mr. Siskind had written the Union, sup- plementing his letter of January 9, 1953, by enclosing , in addition to the money there- in referred to, a money order for $27 to cover his clients' dues for the month of January. The $27 money order was returned by the Union on January 19, 1953. In February, Mr. Siskind advised the Union that his clients were prepared to pay their dues for the month of February and for all subsequent months, but would refrain, unless advised otherwise , from making an actual tender , because the Union's past refusal to accept dues had disclosed that any such tender would be futile. In the meantime the Union , under date of January 14, 1953, wrote the Company as follows: GENTLEMEN : This is to advise you that Marie Kuhlman is no longer in good standing as a member of Local 140. We, therefore, request that, pursuant to our Agreement , you terminate her employment. Very truly yours, BERNARD MINTER, Business Agent. Sometime between January 14 and March 1953-the record does not establish the precise dates-the Union orally requested the Company to discharge Scandariato and' Karle for the same reason . So far as appears, the Union never requested the dis- charge of the six other employees represented by Mr. Siskind. The Company did not comply with the Union's request for the discharge of Kuhl- man, Scandariato , and Karle. Insisting that their discharge was required by the contract, the Union demanded that the matter be submitted to arbitration. The Company agreed to that procedure and an arbitration hearing was scheduled for May 13, 1953 . Upon learning of the proposed arbitration, Mr. Siskind notified the Com- pany of his client's objections to that proceeding, contending that in view of the un- fair labor practice charges that had been filed in the interim against the Union it was a matter that could properly be resolved only through Board processes. The scheduled arbitration proceeding has never been held, and the Charging Parties still remain in the Company's employ. However, the Union's demand for their dis- charge has never been withdrawn. 2. Analysis of contentions and conclusions Was the Union's demand for the discharge of Kuhlman , Scandariato, and Karle violative of Section 8 (b) (2) and ( 1) (A)? The Union defends its action on the basis of the concededly valid union-shop clause in the contract. It contends that the employees in question , as a result of their failure to pay dues in and for the month of 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 1952, lost, without thereafter regaining, their good-standing membership in the Union, thereby rendering themselves vulnerable to legal discharge under the contractual provisions permitted by Section 8 (a) (3). With that contention the General Counsel takes issue. As his primary position the General Counsel argues that the union-shop contract provides no defense, because the employees' loss of good standing was predicated in part upon their nonpayment of dues for the months of April and May when no contract was in effect. To support that position he relies on the line of cases holding that a union-security provision may not be given retro- active effect to condition employment upon the payment of dues obligations in- curred during a free period when no valid contractual requirement for such payment existed .4 As an alternative position, the General Counsel asserts that even if the ,employees had rendered themselves vulnerable to discharge under the contract by nonpayment of dues and consequent loss of union membership required thereunder, that was not the real basis for the discharge requests. The Union's real and illegal reason, he insists, was to retaliate against the employees for their refusal to sign checkoff authorizations permitting the deduction of assessments. The Union, in turn, counters the General Counsel's retroactivity agreement by disputing that the employ- ees were deprived of their employment because of nonpayment of April and May dues. It contends that the three-as well as all other Company employees-had full opportunity to maintain their good standing as members and to safeguard their job rights under the contract merely by keeping current with the monthly dues obli- gations incurred after the contract went into effect. Had they done so-it says- they would not have rendered themselves vulnerable to discharge. They lost their good standing, according to the Union, only because they failed to meet their dues obligations for the month of October, a month for which their obligation to pay cannot be questioned either under the contract or the law. It concedes that in order to determine whether nonpayment for the month of October brought the employees into bad standing under its constitution, it was necessary to take into account pre- viously accumulated arrears for April and May. But, it says, that was done simply for the purpose of determining the lapse of the allowable grace period for dues de- linquency under its internal regulations generally applicable to all its members .5 What its internal regulations provide, it argues, cannot under the Act be of any con- cern to the Board as long as employees were not denied their statutory right to con- tinue their membership and employment by keeping current with their monthly dues incurred during the period the contract was in effect. As for the General Counsel's alternative "pretext" theory, the Union submits that there is no substantial record evidence to support the inference the General Counsel seeks to have drawn. With regard to the General Counsel's primary position-and accepting the validity of the Union's factual premise that April and May dues had not been waived-I agree with the Union that this case is distinguishable on its facts from the cases relied upon by the General Counsel. In the cases he cites either employment was conditioned on the maintenance of membership at a time it was not legally required, as in Colonie Fibre, or there was an actual requirement as a condition of employment for the pay- ment of back dues in addition and without reference to the contract obligation to meet current dues, as in Timken-Detroit Axle Company and Namm's. Here, I do not think the record supports a finding that the Union insisted, as a condition of employment, that the employees in question pay their back dues for April and May in addition to maintaining their good standing by the payment of dues accrued dur- ing the contract term, or that it sought their discharge for that reason. The record I think is consistent with the Union's argument that the April and May dues were taken into account simply for the purpose of computing whether the nonpayment of the October dues brought the employees in bad standing under the provisions of the Union's constitution . I am far from satisfied that the application of a membership regulation, generally applicable to all members, that has the effect of cutting down on the basis of past dues arrears the maximum grace period allowable for meeting future dues obligations necessary to maintain good-standing membership required 'See, e. g, Colonie Fibre Co., 163 F. 2d 65,(C. A. 2). International Union, United Automobile, Aircraft and Agricultural Workers of America, CIO, Local 291 (Wisconsin Axle Division, The Timken-Detroit Axle Company), 92 NLRB 968; Namm's, Inc., 102 NLRB 466. 5 As proof that its regulations were uniformly applied, the Union points to undisputed evidence that the April and May dues are recorded on its books as outstanding obligations for all its members who were in the Company's employ at the time and who have not since paid. The others also would have suffered a lapse of membership, it says, had they allowed their grace rights to expire by failing to pay an additional month's dues. LOCAL 140, ETC. 339 by a union-shop contract , but which does not bar the retention of membership stand, ing with dependent job rights if dues accruing during the contract term are met as and when they fall due, is to be condemned under the Act on the same principles as are declared in the cases upon which the General Counsel relies.6 But that is an issue which I need not, and therefore do not, decide in this case. For in this case, I am fully satisfied for an entirely different reason that the Union's attempt to cause the discharge of the three employees in question cannot in any event be defended. Under the Act, enforcement against an employee of a union- shop provision can be justified only when it is bottomed on his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. It appears in this case that the uniform method followed for the collection of dues from Company employees was through payroll deductions. The three employees had on file with the Company checkoff authorizations, which they never revoked, which were never returned to them, and which in the past had been used as the means for the payment of their dues. They were never specifically informed by the Union of the cancellation of the authorizations or that they would thereafter be expected to honor their dues obligations by some other method. No question was raised, so far as appears, about the sufficiency of their particular authori- zations to support the deduction of periodic dues. There may have been as tq assessments But as the payment of assessments may not be required as a condition of employment, the employees were within their legal rights in refusing to sign sub- stitute checkoff authorizations providing for such inciusion. Under the circum- stances of this case, I believe that the unrevoked and uncanceled checkoff authoriza- tions must therefore be viewed as continuing tenders by the employees of their periodic dues obligations to the Union. See Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1461. Moreover, on the particular facts of this case, I find no merit to the Union's position that, once having been put in notice that no dues deductions were being made from their pay, the employees were delinquent in not thereafter manually tendering monthly dues to the Union during the months they fell due. The record discloses that the employees throughout acted in good faith and without intent to take advantage of the situation or to obtain a "free ride." Before being advised that they were in bad standing, they did make a direct tender to the Union of their arrears. According to the Union's view, the tender made in early December was too late, as they were already then in bad standing because of nonpayment of October dues piled upon April and May dues. But the record supports a finding that the employees had just cause to suppose that their tenders were timely even under the Union's constitution. Without deciding whether such conduct on the Union's part amounted to a legal waiver of dues obligations for the months of April and May, I think it at least clear that by its entire course of inaction with regard to the April and May dues-especially its failure to give any indication that it expected dues payments for the strike months, its normal policy not to expect dues payments during strikes, and its abstention from calling upon the Company for payroll deductions for such arrears as was its normal practice in the case of other arrears-the Union led the employees reasonably to believe that there was no need to consider April and May in computing the time within which it was necessary to make tender if loss of good standing was to be avoided.' That the employees were not seeking to avoid payment of their dues obligations is further reflected by their tender of April and May dues, though they were under no legal compulsion to do so, upon learning that the Union was taking the position that such dues were out- standing obligations. Far from showing a "deliberate default" s the record here shows a sincere and good-faith affirmative effort by the Charging Parties to honor their dues obligations under the union -shop contract. To hold under the circumstances here shown that there was no compliance with the tender requirements of the Act, would I think flout the statutory purpose and intent of protecting employees in union-shop situations who without evasion or postponement show by their affirmative conduct a readiness and willingness to Cf Food Machinery and Chemical Corporation, 99 NLRB 1430. 7 In that connection , it is significant that in the case of Scandariato , nothing was said to her about bad standing in June 1952, when, if dues for April and May are included, she was, by virtue of her nonpayment of dues in March, already 3 months in arrears As found, the Union in July collected her March arrears by checkoff, but made no request for April and May. s Cf. Chssholm-Ryder Company, Inc, 94 NLRB 508 334811-55-vol. 109-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD honor their dues obligations. On all the evidence, I am satisfied that the Charging Parties substantially complied with their duty to tender. It follows that the Union was unjustified in demanding as to them enforcement of the contract's penalty provisions for failure to maintain good standing in the Union. There is some evidence suggesting that the Union 's real motive in refusing to accept their tender of dues, and in thereafter seeking their discharge, was rooted in its hostility to them growing from their refusal to sign the substitute checkoff authori- zations. But, in view of the disposition made of this case on another ground, I see no need to -pass on the issue of whether such evidence is sufficiently substantial to warrant an inference to that effect. I conclude and find that, by demanding the discharge of Kuhlman, Scandariato, and Karle, the Union violated Section 8 (b) (2) of the Act, and Section 8 (b) (1) (A) as well. B. As to the allegations relating to the Security Fund and the denial of benefits thereunder to Scandariato 1. The relevant facts The contracts between the Union and the Company, at least those covering the past 3 years, have made provision for employer contributions to an employee welfare plan, called Local 140 Security Fund. The provision in the current contract termi- nating March 31, 1954, which it is conceded by all is in substantially the same form as that in the two earlier contracts, reads in relevant part as follows: The Employer agrees as long as this agreement remains in effect to pay monthly on or about the 10th day of each month, beginning April 1953, a sum equal to 61/2 percent a of the monthly gross payroll of the employees in the bargaining unit to Local 140 Security Fund for the benefit of the employees of the Em- ployer within the bargaining unit. . . . It is understood that the social benefits to be provided will meet the requirements of all applicable laws and satisfy the Employer's obligation under the New York State Disability Law without fur- ther obligation on the part of the Employer. It is agreed that the Local 140 Security Fund will be administered in accordance with the provisions of all applicable laws. It is further understood and agreed that the Employer shall be under no obligation to see that the moneys paid to Local 140 Security Fund pursuant to this paragraph is for the purposes and uses above mentioned. The Security Fund covers employees not only of the Company, but of other employees in the industry with whom the Union has collective-bargaining contracts. Under the Fund, benefits are provided covered employees, and in some instances members of their families, for sickness and accident, surgical, medical, and hospi- talization expenses , and death . In form at least, the Fund is administered by a joint trusteeship composed of union and employer trustees. Not every employer, how- ever, has its own representation as a trustee-the Company in the instant case, for example, has none. In its actual operation , the Fund appears to be managed by representatives of the Union-its managing officers being composed exclusively of union representatives. Alex Sirota, the president of the Fund and its manager, is also business manager of the Union. Bernard Minter, the secretary and treasurer of the Fund, is also the business agent of the Union. The contract provisions relating to the Fund contain no restrictions on employee eligibility for benefits, and require the Company to base its contributions upon the gross pay of all employees in the appropriate unit. It appears, however, that in practical operation the managers of the Fund consider only members of the Union in good standing to be eligible for benefits . Thus, in a booklet describing the opera- tions of the Fund, signed by Alex Sirota as its chairman, and issued to the Com- pany's employees sometime in 1952, the following is stated: YOU ARE ELIGIBLE FOR BENEFITS- If you are a member in good standing of Local 140, Bedding, Curtain & Drapery Workers and if you are actively at work for a contributing employer. Minter, while testifying as a witness for the Respondent, attested to the accuracy of the statement just quoted. There is no evidence to show that the Company, when it entered into the contracts prior to the current one, was aware that benefits from the Fund would be restricted to those employees who were members of the Union in good standing. It is clear, however, that the Company was put on notice to that 9 The contract which terminated March 31, 1952, called for a 5 percent contribution, and, that which terminated March 31, 1953, called for a 6 percent contribution. LOCAL 140, ETC. 341 effect before it entered into its current contract with the Union, about the end of March 1953-and this as a result of the Fund's withholding of benefits from Scan- dariato, as will be detailed below. It is the practice of the Union, when a member otherwise covered by the Fund is dropped from good standing, to notify the Fund to that effect. That was done in the cases of Kuhlman, Scandariato, and Karle at the end of October. The enroll- ment cards in the Fund of the three employees in question contain a notation, bear- ing date of November 1, 1952, that their certificates of interest in the Fund were can- celed as of that date. The employees were not, however, notified of the action taken- Kuhlman and Karle at no time, at least up to the time of the hearing, and Scandariato not until she had occasion to apply for benefits, as will be reported below. Never- theless, despite the cancellation of their interest, the Fund has continued to collect from the Company each month up to the present time contributions calculated on the basis of the stipulated percentage of the gross payroll for all employees in the appropriate unit, including the gross wages paid Kuhlman, Scandariato, and Karle. At the end of November 1952, Scandariato became ill. She was hospitalized for 7 days, undergoing surgical treatment, and thereafter remained at home recuperating for a period of about a month. If covered by the Fund, she became entitled to disability benefit payments, as well as payments to compensate her for medical, surgi- cal, and hospital expenses incurred When Scandariato entered the hospital she presented a "Blue Cross" card of As- sociated Hospital Service of New York, the organization that services on behalf of the Fund the hospitalization benefits to which "covered" employees are entitled. She was advised subsequently by that organization that it could not pay hospitalization bene- fits for her account because her right to such benefits terminated on November 1, 1952. Upon leaving the hospital, Scandariato contacted Alex Sirota, business manager of the Union and of the Fund, and asked him to send her the necessary forms she would require to apply for benefits. Sirota at that time told her in sub- stance that she could have no forms because she was not in good standing with the Union. Under date of December 13, 1952. Scandariato wrote the Security Fund formally requesting such forms. About a week later the forms were sent to her with an accompanying letter from Sirota, stating: Some question has been raised as to your eligibility for such benefits. In the meantime, however, we are enclosing herewith an application form. If you will fill it out and return it to us we will then determine your eligibility. The forms were duly filled out and returned to the Fund on January 8, 1953, with a letter from David Siskind, Scandariato's attorney, asking for the expeditious process- ing of the benefit claims On January 13, 1953, Mr. Siskind wrote the Company. Mr. Siskind advised the Company that the Union was withholding payment of Scandariato's benefits for which provision had been made in the collective-bargaining agreement and on account of which the Company had made contributions; stated that the Union was giving as its reason for the withholding that Scandariato had lost her good-standing membership in the Union, denied that the assigned reason was the true one, and asserted that the Union's real reason was that Scandariato had objected, as was her right, to the execution of a checkoff form calling for the deduction of assessments in addition to dues. Mr. Siskind declared his intention to file unfair labor practice charges or to institute other proceedings to prevent discrimination against his client and to insure payment of the benefits. He called upon the Com- pany for aid in seeing to it that Scandariato's benefit claims were honored. The Company did not reply to Mr. Siskind's letter. However, under date of January 14, 1953, Scandariato received a letter from the Fund, instructing her to appear at a doctor's office for a physical examination. Scandariato complied with that in- struction on January 19, 1953. Normally, valid benefit claims made by Fund beneficiaries are honored promptly. On a prior occasion, in March 1952, when Scandariato had been hospitalized for surgical treatment, she had received her benefits within 2 or 3 weeks after her claim had been presented. On this occasion, however, no action was taken for a period of about 10 months. Follow-up letters written by Mr. Siskind under date of February 2 and 17, 1953, were left unanswered. It was only after the hearing in this pro- ceeding was formally opened that steps were taken to pay the claim. Under date of November 19, 1953, Sirota, on the letterhead of the Security Fund, wrote Scan- dariato, enclosing checks for $217.95 and $125 as reimbursement for her hospital and surgical expenses, respectively, and at the same time advised Scandariato that her claim for disability benefits had been forwarded to the insurance carrier from whom she would undoubtedly hear shortly. As of the close of the hearing, the disability benefit claim had not yet been paid. 342: DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Analysis and conclusions There are two separate though related aspects to this phase of the case. The first deals with the claim that the Union violated Section 8 (b) (2) along with Section -8 (b) (1) (A) of the Act, by requiring the Company to make employee benefit contri- butions to the Security Fund, though, as administered, the Fund restricted the pay- ment of such benefits to those employees only who were in good-standing member- ship with the Union. The second deals with the claim that the Union in violation of the same sections specifically discriminated against the Charging Parties, by withholding benefit payments from Scandariato and removing Kuhlman and Karle as well as Scandariato from the Fund's eligibility rolls, because of their loss of member- ship status in the Union.' There can be no doubt that the Security Fund, as it was administered under the 1952-1953 contract, and is being administered under the current contract executed in 1953, imposed upon the Company's employees conditions of employment that were discriminatory within the meaning of the Act. It is well settled that welfare fund provisions constitute a term and condition of employment, and that an em- ployer's contributions to such a fund are part of his employees' wages. See Inland Steel Company, 77 NLRB 1, enfd. 170 F. 2d 247 (C. A. 7), cert. denied 336 U. S. 960. By making contributions to a welfare fund in which employee benefits are in fact restricted to those employees only who are union members, though the em- ployer's contributions are made without reference to union membership or non- membership of unit employees, an employer in effect provides more favorable wages and working conditions to those who are union members than to those who are not. Disparate treatment on that basis is discrimination forbidden by the Act. Gaynor News Company, Inc., 93 NLRB 299, enfd. 197 F. 2d 719 (C. A. 2). The law is ,by now clearly established that a labor organization is responsible for illegal dis- crimination that derives from an agreement to which it is a party, and that it violates Section 8 (b) (2) as well as Section 8 (b) (1) (A) of the Act when it executes, maintains , or enforces a collective-bargaining agreement containing provisions which ,have the effect of imposing discriminatory conditions of employment." According- ly, it is found that, by maintaining and enforcing the 1952-1953 contract from'on or about November 1, 195212 until its expiration, and by thereafter executing, main- taining, and enforcing the succeeding and current contract, pursuant to which con- tracts the Company was in effect caused and required, as the Union at all times was aware, to maintain discriminatory conditions of employment-discriminating against nonmembers of the Union in their right to welfare benefits provided for by em- ployer contributions to the Security Fund, and thus encouraging membership in and rendering assistance and support to the Union-the Union violated Section 8 (b) '(1) (A) and 8 (b) (2) of the Act. See Jandel Furs, 100 NLRB 1390. In reaching that conclusion, it is unnecessary to determine whether or not the Company, if it were a-party to this proceeding charged with a Section 8 (a) (3) violation, could have successfully urged as a defense to its conduct, in whole or in part, that the contract on its face was not illegal; or that the discrimination was not of its own making and outside its control; or that, with respect to the 1952-1953 con- tract it was not on notice when the contract was made of the discriminatory basis on which the Fund was being administered; or that even after acquiring such knowl- edge through the Scandariato case it was not thereafter in a position because of con- tract obligations already incurred to do anything about it' The question of em- ployer liability is not before us, nor is its determination controlling on the rule of this case. For, under Section 8 (b) (2), a labor organization, at least under certain cir- 10 The specific discrimination against Scandariato is alleged as a violation of Section 8 (b) (2) and 8 (b) (1) (A) ; that against Kuhlman and Karle, only as a violation of 8 (b) (1) (A). 11 See, generally, Pacific American Shipowners Association, 98 NLRB 582; F. H McGraw and Company, 99 NLRB 695, 206 F. 2d. 635 (C. A. 6) ; Chrolds Company, 93 NLRB 281, Acme Mattress Company, Inc., 91 NLRB 1010; International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 291 Wisconsin Axle Division, The Timken-Detrost Axle Company, 92 NLRB 968; New York State Employers Association, Inc, 93 NLRB 127, enfd 196 F. 2d 78 (C. A. 2). 1' The date alleged in the complaint as the commencement of the unfair labor practices charged. 1' Knowledge on the part of the Company prior to the execution of the current contract is, of course, clear on this record. So, too, is employee knowledge, as appears from the finding made above concerning the Booklet describing eligibility requirements distributed to the Company's employees in 1952. LOCAL 140, ETC. 343 cumstances, may be held liable for causing or attempting to cause employer discrimi- nation even though the facts are such as to absolve the employer from culpability under Section 8 (a) (3). See Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1462, 1508. Section 8 (b) (2) makes it illegal for a labor organization not only to cause or attempt to cause an employer to violate Section 8 (a) (3), but, in its second part, for it independently of such an employer violation to cause or at- tempt to cause an employer "to discriminate against an employee with respect to whom membership in such organization has been denied or terminated ," for reasons other than the single ground, not applicable here, to which the section refers" Where, as here, discrimination in employment conditions exists in fact , an employer's ignorance of it makes the discrimination no less, and if on that or any other basis an employer may have a legal defense, that defense cannot serve to shield a union, where, also as here, the union's own legal responsibility for bringing about or main- taining such employer discrimination is otherwise clearly and independently estab- lished. We come, then , to a consideration of the aspect of the case dealing with specific discrimination against Scandariato . The Union contends that no Section 8 (b) (2) violation in her case can be supported on the language of the section . Asserting that the evidence fails to establish any dealings between the Union and the Company with regard to Scandariato 's claim, it argues that the most that can be inferred from the record is that the Union caused the Security Fund to discriminate . I do not agree. If the Scandariato case could be considered in isolation , it would perhaps be difficult to spell out an 8 (b) (2) violation in the terms of the statutory language. But the situation I think is different when her case is viewed, as it must be , in con- text with the other findings that have here been made . It has been found that legal responsibility under Section 8 (b) (2) attaches to the Union for causing the Com- pany to maintain discriminatory conditions , by contributing to a welfare fund under which, as the Union knew and intended , benefits would be denied those employees the Union might declare not in good standing . The Union's action in notifying the Fund of Scandariato's loss of membership standing , taken with knowledge that its conse- quence would be to drop her from the Fund's eligibility rolls, and evidently for that sole purpose, can only reasonably be viewed as an implementation and effectuation, through actual application in the manner intended , of the discriminatory employ- ment conditions the Union had caused the Company to maintain . It would be a legal anomaly to hold the Union responsible under Section 8 (b) (2) for the estab- lishment of the discriminatory employment conditions, and yet to hold it immune under that section for the application to a specific individual of a natural and antici- pated consequence of such discriminatory employment conditions . For these reasons, I believe and I find, that the record establishes a Section 8 (b) (2) violation by the Union with regard to Scandariato. In any event , whatever view may be taken of it as a violation of Section 8 (b) (2), I think it clear beyond question , and I find, that the Union's conduct as to Scan- dariato violated Section 8 (b) (1) (A).15 The same finding is made with regard to the action taken by the Union to bring about the cancellation on the Fund's records of the participation right of Kuhlman and Karle to Fund benefits because of their loss of good standing . These conclusions are reached whether the Union and the Security Fund are regarded as a common entity, as is contended by the General Counsel , or as completely separate functional and legal entities, as the Union insists. Even if the Union's position on that point is accepted , the fact re- mains that the Union, by notifying the Fund of their loss of membership , knowingly and with that evident purpose set in motion the machinery to exclude the named 14 The excepted permissible ground-failure to tender periodic dues and initiation fees uniformly required-has no application here. In the first place, the eligibility disqualifi- cation under the Fund is not confined to those to whom membership has been denied or terminated on that ground, but applies to all deprived of membership for whatever reason; Secondly, it can have no application to Scandariato with respect to whom specific dis- crimination is charged, because, as found, her membership was not in fact terminated on that ground Finally, as the Board has recently ruled, the stated ground, even where it exists in a union-shop situation, would privilege discrimination by discharge, but by no other though lesser method. Krambo Food Stores, Incorporated, 106 NLRB 870. is From a practical point of view it makes little difference whether the conduct com- plained of is found to be a violation of Section 8 (b) (1) (A), or of Section 8 (b) (2), or of both ; for in any event effectuation of the policies of the Act would call for the same affirmative remedial action to undo the wrong and place Scandariato in the position iil which she would have been but for Union's illegal conduct-that affirmative remedial action being provided for in "The Remedy" section below. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals from participation in Fund benefits. As the penalty that was thus imposed went beyond membership retention rights, which under the proviso to Section 8 (b) (1) (A) the Union was free to control, and extended to the impair- ment of employee interests affecting terms and conditions of employment, which comes within the interdiction of the Act, and as the penalty was imposed because of the employees' nonmembership in the Union, the Union's action clearly involved an illegal restraint and coercion in the statutory sense. I find no merit to the Union's argument that the Union's action may be justified on the ground that, having lost their union membership required as a condition of employment under a valid union- security contract, the employees were no longer properly on the payroll and there- fore no longer equitably in a position to participate in the distribution of employee benefits. In point of fact, up to the time the benefit exclusion action was taken, the Union had made no claim on the Company for their severance from employment, nor did it do so until some time later, and it had until then continued, as indeed it still does, to collect from the Company welfare contributions predicated on the inclusion of these employees in the bargaining and payroll unit. In point of law, as has been found above, the Union had no legal claim under the union-shop provi- sion for the removal of these employees from the payroll. Moreover, even if the employees had been legally vulnerable to discharge under the union-shop contract, the Union under the rule of Krambo Food Stores, supra, was nevertheless not privi- leged to invoke a sanction other than discharge to enforce its rights under the union shop provision. C. As to the allegation that the Union violated Section 8 (b) (1) (A) by promising to pay Scandariato benefits if she assisted the Union in its strike activities The complaint alleges that the Union violated Section 8 (b) (1) (A), not only by the conduct already reviewed, but also by "promising to pay to Scandariato the benefits under the Local 140 Security Fund if she assisted and joined Respondent in its strike and other concerted activities at the Brooklyn plant." The General Counsel would support that allegation mainly on the basis of testimony given by Scandariato concerning certain statements made to her by Sirota during a visit to her home in May 1953. On that issue the testimony is as follows- In May 1953, there was a strike at the Respondent's plant. All employees joined the strike, except the 3 Charging Parties and the 6 other employees who with them had declined to sign the checkoff authorizations that had been distributed to em- ployees the previous October. On the fourth day of the strike, Sirota paid a visit to Scandariato's home. When asked the purpose of his visit, Sirota said he wanted Scandariato to arrange to assemble "all the girls"-presumably the dissident 9-so that he might speak to them, and that if she did as he asked he would see to it that her unpaid claim for benefits from the Security Fund was paid within 24 hours. At Sirota's request, Scandariato telephoned Kuhlman, but when Sirota got on the phone, Kuhlman refused to speak to him. While Sirota was still there, Karle telephoned Scandariato. Sirota also spoke to her, but the record does not detail what was said in that conversation. So much is clear from the record, but beyond that Scandariato's testimony is wholly confused, and little sense can be made of it.is All that one can be certain of is that Sirota promised prompt payment of Scandariato's benefits if she would arrange a meeting with other girls so that he might talk to them. Scandariato's testimony is too vague to support a finding, in accord with the complaint's allegation, that Sirota was conditioning payment of the benefits upon her joining the strike.17 If Sirota told her his purpose in desiring to speak to the girls, Scandariato's testimony fails to reveal it with any reliable clarity. Although Scandariato testified at one point, in response to a direct question, that Sirota stated he wanted to see the girls "about signing the cards," her testimony elsewhere appears to contradict that asser- tion. Thus, we find her testifying at other points that Sirota said that if they got to- gether to talk it over, they could "forget about the card and everything," and that Sirota said that he wanted to talk to the girls "so they wouldn't have to sign the card and nobody would have to know anything about it." According to still another 11 Sirota did not testify nor did Scandariato's husband, who was the only other person present at the time 17 Scandariato did not so claim In response to a leading question by the General Counsel, Scandariato testified that Sirota during his visit did make mention of her working during the strike. But all that was said in that connection, according to her recollection, was the following : He said if I was outside striking with the others, and the other people were inside, would I like it. I says, "No." So he says, "What do you do it for " That is all. LOCAL 140, ETC. 345 version given by Scandariato, Sirota told her "if I get the girls together we will talk business, and don't tell anybody about the card, if you want to sign, you sign, if you don't want to sign, we will forget about it, I will still give you the $750 [benefits].'' On this state of the record, I am unable to conclude that the particular allegation here in question has been substantiated. Nor am I able to conclude, as was suggested by the General Counsel at oral argument, that Scandariato's testimony on this point supports a finding that Sirota promised her the payment of benefits conditioned upon her signing a checkoff authorization in the form desired by the Union. Her testi- mony, as I view it, is material only as tending to substantiate a finding, relevant to other allegations of the complaint, that the Union in fact exercised substantial control over the payment of Scandariato's benefits from the Security Fund, and that it rather than a separate entity was responsible for the withholding. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the activities of the Company, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and from related violations the danger of which may fairly be anticipated unless enjoined, and also that it take certain affirmative action designed to effectuate the policies of the Act, as follows: It has been found that Respondent attempted to cause the Company illegally to discriminate with regard to the hire and tenure of employment of Kuhlman, Scan- dariato, and Karle. It will be recommended that the Respondent notify the Com- pany in writing that it has no objection to the employment of said employees and that it withdraws the demands heretofore made by it for their discharge. It has been found that the Respondent engaged in unfair labor practices by hav- ing the Local 140 Security Fund cancel on its records the interest of the three named employees in such rights as they otherwise would have had to participate in the benefits of the Fund, because of their loss of good-standing membership in the Union. It will be recommended that the Respondent notify the Security Fund that it with- draws all objection to their full participation in benefit rights, as employees covered by said Fund, on the basis of the contributions made to said Fund on behalf of said employees, and that it desires their full rights and interests in said Fund to be restored ab initio as if the Union's earlier notice of loss of good standing, on the basis of which the aforesaid cancellation was made, had not been given, and, further, that it take all necessary steps within its control to effectuate the restoration of all rights and interests of said employees in and to the benefits of said Fund. It has been found that the Respondent engaged in unfair labor practices by causing, because of her nonmembership in the Respondent, the discriminatory denial to and withholding from Annette Ciervo Scandariato, of payment of benefit claims against the Fund, and to which, but for such discrimination, she normally would have been entitled. It will be recommended that the Respondent make her whole for any loss of money she may have suffered as a result of said discrimination, by payment to her of the difference between the amount which she would have been entitled to receive as benefits as the Security Fund had her interest not been canceled, and such amounts, if any, as may have been already paid her. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By attempting to cause The Englander Company, Inc., to discriminate in regard to the hire and tenure of employment of Marie J. Kuhlman, Annette Ciervo Scan- dariato, and Margaret Karle, and by causing the Company to discriminate in regard to terms and conditions of employment of its employees who were not members of the Union in good standing, generally, and of the three individuals above named, in particular, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (b) (2) of the Act. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By restraining and coercing employees of the Company in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in, unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL MEMBERS OF LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO, AND TO ALL EMPLOYEES OF THE ENGLANDER COMPANY, INC. Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT cause or attempt to cause The Englander Company, Inc., to dis- criminate against employees in the bargaining unit represented by it, by requir- ing the Company to contribute sums of money to The Local 140 Security Fund for the purpose of providing benefits to employees in said unit, unless pro- vision is made in the administration and operation of said Fund, or otherwise, for the payment of benefits on a nondiscriminatory basis without regard to the membership status, or want of it, of employees in the bargaining unit. WE WILL NOT take any action or engage in any conduct in relation to The Local 140 Security Fund, or otherwise, that is calculated to deny or withhold from any employee in the said bargaining unit, because of lack of good- stand- ing membership in the Union, the payment to him of any benefits that would otherwise be due and payable to him from said Fund. WE WILL NOT in any other manner cause or attempt to cause the Company to discriminate against any of its employees with regard to their hire or tenure of employment or terms or condition of employment, except under the con- ditions and upon the ground expressly authorized by Sections 8 (a) (3) and 8 (b) (2) of the Act. WE WILL NOT by means of the foregoing, or in any like or related manner, re- strain or coerce employees in the exercise of their right to engage in or refrain from any or all concerted activities listed in 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. WE WILL make Annette Ciervo Scandariato whole for any loss of money she may have suffered as the result of the discriminatory denial or withholding of benefits due and payable to her from The Local 140 Security Fund. WE WILL take all necessary steps within our control to effectuate the resto- ration to Marie F. Kuhlman, Annette Ciervo Scandariato, and Margaret Karle of all rights of said employees to participate in the benefits of said Fund. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO, Labor Organization. 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. SYMNS GROCER Co., AND IDAHO WHOLESALE GROCERY CO. and TEAM- STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS UNION, LOCAL No. 983, AFL. Case No. 19-CA-481. July 23, 1954 Supplemental Decision and Amended Order On March 16, 1953, the Board issued a Decision and Order in the above case (103 NLRB 622), in which it found, in agreement with the 109 NLRB No. 58.