Haffenreffer & Co., Inc.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find that Rennie is not a supervisor as defined in the Act. Accordingly, we shall overrule the challenge to his ballot. DIRECTION IT IS HEREBY DIRECTED that, as a part of the investi- gation to ascertain representatives for the purposes of collec- tive bargaining with Stainless Welded Products, Inc., Jersey City, New Jersey, the Regional Director for the Second Region shall, pursuant to the Rules and Regulations of the National Labor Relations Board, within ten (10) days from the date of this Direction, open and count the ballots of Frank Cavalier, Frank Morgan, Louis Zawada, Bernard Bentsen, Xavier Boguslawski, John Impomeni, John Kelly, Valgene Lloyd, and Elwood Rennie, and shall thereafter prepare and-cause to be served upon the parties a revised tally of ballots, in- cluding therein the count of the said challenged ballots. HAFFENREFFER & CO., INC. and FRED LESTER LOCAL NO. 14, INTERNATIONAL UNION OF UNITED BREW- ERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO and FRED LESTER. Cases Nos. 1 - CA-1208 and 1-CB-192. April 20, 1953 DECISION AND ORDER On December 31, 1952, Trial Examiner William F. Scharni- kow issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirm- ative action, as set forth in the copy of the Intermediate Re- port attached hereto. Thereafter the Respondents filed excep- tions to the Intermed4te, Report and supporting briefs. _ I I Respondent Employer's and Respondent Union's requests for oral argument are hereby denied. The record, including the exceptions and briefs, adequately presents the issues and posi- tions of the parties. The Board' has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modi- fied below.: t Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel (Members Houston, Murdock, and Styles]. 2 We find that, since no union-security agreement was in effect at the time when the Re- spondent Union requested Lester's discharge and when Respondent Employer discharged him, the Respondent Employer committed unfair labor practices within the meaning of Section 8 104 NLRB No. 24. HAFFENREFFER & CO., INC.- ORDER 207 Upon the entire record in this case , and pursuant to Section 10 (c)' of " the National Labor Relations Act, as amended, the Natioria ''La^or Relations Board hereby orders that: 1. The Respondent, Haffenreffer & Co., Inc., Boston, Massa- chusetts , its agents , successors , and assigns , shall: a. Cease and desist from: (1) Encouraging membership in the Respondent Union or in any other labor organization of its employees by discharging employees unless they are members of the Respondent Union in good standing , or by discriminating in any other manner in respect to the hire and tenure of employment , or any term or condition of employment , 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 author- ized by Section 8 (a) (3) of the Act. (2) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist the Respondent Union or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Offer to Fred Lester immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights or privileges. (2) Upon request make available to the Board or its agents, for examination and copying , all payroll records, social- security payment records , timecards , personnel records and reports, and all other records necessary to analyze the amount of back pay and the right of reinstatement under the terms of this Order. (3) Post at its plant at Boston, Massachusetts , copies of the notice hereto attached as Appendix A.s Copies of said (a) (1) and ( 3) and the Respondent Union committed unfair labor practices within the meaning of Section 8 (b) (1) (A ) and (2) of the Act. In view of this fmding we deem it unnecessary to determine the validity of the union -security clause contained in the 1951 contract between the Employer and Union. We therefore shall not adopt the Trial Examiner 's finding in this respect, nor his conclusion of law that, by their re- tention and application of the provisions of their 1951 contract requiring membership in the Union as a condition of employment by the Employer during the 6 months ' period preceding the filing and service of the charges , the Respondent Employer and the Respondent Union committed violations of Section 8 (a) (1) and ( 3) and Section 8 (b) (1) (A) and (2) of the Act, respectively. sin the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." 2 08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent Com- pany's representative, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by other material. (4) Notify the Regional Director for the First Region in writing within ten (10) days from the date of the Order what steps it has taken to comply herewith. 2. The Respondent, Local No. 14, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its officers, agents, successors, and assigns, shall: a. Cease and desist from: (1) Causing or attempting to cause the Respondent Haffen- reffer & Co., Inc., or any other employer, its officers , agents, successors, or assigns , to discharge employees unless they are members of the Respondent Union in good standing, or to discriminate against any employees in any other manner in respect to the hire or tenure of employment or any term or condition of employment in violation of Section 8 (a) (3) of the Act, except to the extent that such rights may be affected by an agreement requiring membership in the Respondent Union as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (2) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. b. Take the following affirmative action which the under- signed finds will effectuate the policies of the Act: (1) Notify the Respondent Company in writing that it has withdrawn its objections to the Respondent Company's employ- ment of Fred Lester and now requests the Company to reinstate Lester. (2) Notify Fred Lester in writing that it has so advised the Respondent Company. (3) Post in conspicuous places in its offices where notices to members are customarily posted, copies of the notice attached hereto as Appendix B.4 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent Union's official representatives, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that such 4 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals . Enforcing an Order." HAFFENREFFER & CO., INC. 209 notices are not altered , defaced, or covered by any other material. (4) Mail to the Regional Director for the First Region copies of the notice attached hereto as Appendix B, for posting, the Respondent Company being willing , at the plant of the Company in Boston, Massachusetts , in places where notices to employees are posted . Copies of said notice , to be furnished by the Regional Director for the First Region, shall, after being signed as provided in paragraph 2 (b) (3), above, be forthwith returned to the said Regional Director for said posting. (5) Notify the Regional Director for the First Region in writing within ten (10 ) days from the date of this Order what steps it has taken to comply herewith. 3. The Respondent Haffenreffer & Co., Inc., and the Res- pondent Local No., 14 , International Union of United Brewery, Flour, Cereal , Soft Drink and Distillery Workers of America, CIO, and their respective officers , agents, representatives, successors , and assigns , shall jointly and severally make Fred Lester whole for any loss of pay or earnings he may have suffered because of the discrimination against him, in the manner and to the extent set forth in the section of the Inter- mediate Report entitled "The Remedy." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the, policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT encourage membership in the above- named labor organization or in any other labor organiza- tion, by discharging employees unless they are members of the above -named labor organization or of any other labor organization, or by discriminating in any manner in respect to hire or tenure of employment or any term or condition of employment , except to the extent that such action may be permitted by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self - organization , to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the ex- tent that such right maybe affected by an agreement requir - ing membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 210 DECISIONS OF NATIONAL LABOk RELATIONS BOARD WE WILL offer to Fred Lester immediate and full rein- statement to his former or a substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become , remain , or refrain From becoming or remaining members in good standing of the above -named labor organization , or any other labor organiza- tion , except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. HAFFENREFFER & CO., INC., Employer. Dated ....... ...... • B . ......,. . .(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. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT cause or attempt to cause Haffenreffer & Co., Inc., or any other employer , its officers , agents, successors , or assigns , to discharge employees unless they are meiribers of this Union in good standing, or to discriminate against any employees in any other manner in respect to the hire or tenure of employment or any term or condition of employment in violation of Section 8 (a) (3) of the Act except to the extent that such "rights may be affected by an agreement requiring membership in this union as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guar- anteed in Section 7 of the Act. WE WILL notify Haffenreffer & Co., Inc., in writing, and furnish a copy to Fred Lester , that we have with- drawn our objection to the employment of Lester and that we request his reinstatement. HAFFENREFFER & CO., INC. 211 WE WILL :rake Fred Lester whole for any loss of pay he may have suffered because of the discrimination against him. LOCAL NO. 14, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed in the above -entitled cases by Fred Lester and duly served upon the respective Respondents named therein , the General Counsel for the National Labor Rela- tions Board ,i by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint on October 8, 1952, against the Respondent Company in Case No. 1-CA-1208, and another complaint on the same day against the Respondent Union in Case No. 1-CB-192, alleging in each complaint that the Respondent named therein had engaged in and was continu- ing to engage in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, as amended (61 Stat. 136). hereinafter referred to as the Act. On October 8, 1952, the Regional Director also issued an order consolidating these two cases and a notice of hearing. The complaints, the order consolidating the cases, the notice of hearing, and the basic charges were duly served upon the Respondents and Fred Lester. With respect to the unfair labor practices , the complaints allege in substance that (1) by executing and maintaining in force the provisions of a written agreement making membership in the Respondent Union a condition of employment , the Respondent Company has committed, and is committing , unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and the Respondent Union has committed , and is committing , unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2); by the Respondent Union' s compelling the Respondent Company to discharge Fred Lester on or about May 21, 1952, and thereafter to refuse to reinstate Lester to his former job, the Respondent Union further committed, and is committing , unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act; and (3) by discharging the said Fred Lester at the request of the Respondent Union, the Respondent Company committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. The Respondent Company and the Respondent Union filed separate answers , each denying that it had committed the unfair labor practices charged against it. In its answer , the Respond- ent Company also asserts " that after May 21, 1952, Fred Lester was not in the employ of the Respondent" but "denies that it discharged Fred Lester on or about May 21, 1952." Pursuant to notice, a hearing was held in Boston, Massachusetts , on November 6, 1952, before the undersigned Trial Examiner , duly designated by the Chief Trial Examiner. The General Counsel and the Respondents appeared by counsel and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues. At the conclusion of the hearing, counsel for the parties waived oral argument. Since the hearing, the undersigned has received briefs from the General Counsel and from each of the Respondents . He has also received requests for proposed findings of fact from i The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel; the National Labor Relations Board is referred to as the Board. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for the Respondent Company , and requests for proposed findings of fact and conclusions or rulings of law from counsel for the Respondent Union. Upon the entire record in the case , and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT' I. THE BUSINESS OF THE RESPONDENT COMPANY Haffenreffer & Co., Inc., is a Massachusetts corporation engaged in the manufacture, sale, and distribution of beer and ale in the Roxbury district of the city of Boston, Massachusetts. The Company annually purchases raw materials of a value of approximately $ 800,000 Its annual sales amount to approximately $ 6,000,000, of which approximately 14 percent is represented by sales and shipments of beer and ale to customers at points outside the Com- monwealth of Massachusetts The undersigned finds that the Respondent Company is engaged in a business affecting com- merce within the meaning of the Act, and that the substantial effect upon commerce which interruption of its business operations would cause , warrants the Board' s assertion of juris- diction in the present cases. IL THE LABOR ORGANIZATION INVOLVED Local No. 14, International Union of United Brewery , Flour, Cereal, Soft Drink and Dis- tillery Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act III. THE UNFAIR LABOR PRACTICES A. The contracts between the Respondents In the course of a long history of bargaining between the parties, the Respondent Union and its sister Local No. 122 jointly entered into contracts with the Respondent Company on July 27, 1951, and again on August 20, 1952 By their terms, each of these contracts was to be "in full force and effect" from the March 1 preceding the execution of the contract until the following March 1 8 and was to "continue thereafter unless notice in writing of the desire to change or terminate this contract shall be given by either party to the other party thereto at least sixty days prior to March 1 of any subsequent year." The General Counsel concedes that in executing these contracts the Respondent Union acted as the exclusive representative of an appropriate bargaining unit of the Respondent Company's employees within the meaning of Section 9 (a) of the Act. He also admits, with respect to the 1951 contract, that, pursuant to the then applicable but since repealed provisions of Section 9 (e) (1) of the Act, the Respondent Union had received the necessary authorization in a Board- conducted election to execute a union-security contract with the Respondent Company under the proviso to Section 8 (a) (3) of the Act. 2The undersigned grants the requests of the Respondent Company for its proposed findings of fact numbered 1 to 10, inclusive, but denies its requests for those which are numbered 11 and 12. The undersigned also grants the requests of the Respondent Union for its proposed findings of fact numbered 2 to 7, inclusive, but denies its requests for those which are num- bered 1 and 8. Finally, the undersigned denies each of the requests of the Respondent Union for conclusions or rulings of law. 3 The transcript (at page 29, lines 3-11) shows that, in stating the stipulation reached by counsel concerning the duration clause of contract executed on July 27, 1951, the undersigned incorrectly quoted it as providing that "this contract shall be in full force and effect from March, 1952 to March 1, 1953" instead of "March 1. 1951 to March 1, 1952," as the quota- tions are given in the briefs received from the General Counsel and counsel for each of the Respondents. Accordingly, the undersigned hereby orders that the transcript be corrected by substituting the following full quotation of article VIII, section 6 of the 1951 contract for the quotation given at page 29 of the transcript , lines 3-11 , inclusive: This contract shall be in full force and effect from March 1, 1951 to March 1, 1952, and shall continue thereafter unless notice in writing of the desire to change or termi- nate this contract shall be given by either party to the other party thereto at least sixty days prior to March 1 of any subsequent year. At the time of filing such notice specifi- cations of the proposed new contractor change in the old one shall accompany said notice. HAFFENREFFER & CO.. INC. 213 In purported exercise of this authorization, the Respondents included the following union- security provision in the 1951 contract as article I, section 2. All employees for whom the Union is the exclusive bargaining agent under provisions of Section 1, shall be, as a condition of continued employment members of either Local No 14 or Local No. 122 of the international Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, CIO, and any such employee not a member of said Union shall make application for membership within thirty (30) days from the date of the commencement of his employment. The same union-security clause was included in article I, section (2) of the 1952 contract, except for the addition of the phrase, "or thirty (30) days from the effective date of this con- tract, whichever is later." On December 31, 1952, according to the testimony of Arthur P. Gildea, the Respondent Union's secretary-business agent, and a stipulation by counsel, the Respondent Union notified the Respondent Company by telegram that the 1951 contract was "to terminate" on March 1, 1952. As a result, beginning at least as early as March 1, 1952, the Respondents began negotiations which resulted in their execution of the 1952 contract on August 20, 1952 Between March 1, 1952, and August 20, 1952, according to the testimony of Vice-President John Haffenreffer of the Respondent Company, the parties had no oral or written agreement that the union-security provisions of the 1951 contract should remain in effect B, The facts with respect to Lester's discharge By telegrams sent on or about May 17, 1952, the Respondent Company recalled a number of employees who had been laid off on October 19, 1951. Among them was Fred Lester, who had worked for the Respondent Company since 1944 Lester thereupon returned to work on Tuesday, May 20. Lester had not paid his dues as a member of the Respondent Union for any of the months beginning with September 1951. Nor, although he had not been employed during his layoff, had he applied for, or received, "out-of-work" stamps from the Respondent Union excusing him from the payment of dues during his period of unemployment, as provided in the Re- spondent Union's international constitution4 or in the bylaws for the Local.6 Furthermore, under sections of the International's constitution and the Locals' bylaws providing for forfeiture of membership and expulsion without right of appeal upon a member's failure to pay dues for a period of more than 3 months, 6 the Respondent Union passed a resolution at 4The following are the relevant provisions contained in the international's constitution: Article IV, Section 17 (a). Upon payment of their monthly dues, the members shall re- ceive stamps to be procured by the Local Union secretaries from the International Union, as a receipt. These stamps must be pasted in the membership books by the proper of- ficers of the Local Union, and must be stamped with a date stamp showing the date upon which the member paid. These dues stamps are the only receipt the members have that their dues have been paid and it is the duty of the members to demand that the dues stamps are pasted in their membership books. Article IV, Sec. 18 (a). Out of work stamps are issued members for any calendar month in which they have no employment. Members who worked forty (40) hours in any calendar month must pay their regular dues for such month. 5A copy of the Local's bylaws, which was introduced in evidence, contains the following relevant provision: Article IV, Section 4. Every out of work member shall report to the Secretary at the union office each morning unless he has a reasonable excuse in order to protect his seniority rights on the out-of-work list. Members who work forty (40) hours on any cal- endar month must pay their dues and are not entitled to out-of-work stamps. The undersigned credits the testimony of Arthur Gildea, the Union's secretary, that, by amendment, copy of which was not available at the hearing, this section of the bylaws had been amended to require an unemployed member to report once a month rather than every day. 6The International's constitution contains the following provision as article III, section 10: Members forfeit their membership if they fall in arrears with their dues and assess- ments more than 3 months. Expulsion on this account is not subject to appeal. The Local's bylaws contain the following provisions as article VIII, section 6 (a) and (b): (a) Members in arrears with dues, assessments, or fines for 3 months shall be noti- fied by the Secretary-Business Agent and shall pay a fine of fifty cents before the arrearages can be accepted. 283230 0 - 54 - 15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its January 1952 meeting that "all delinquent members be given until January 19, 1952, to be in good standing or stand expelled from Local 14." No notice of this action, however, was given to Lester. In letters mailed to the Respondent Company on May 20 and May 21, 1952, the Respondent Union referred to "Article I of the Agreement between your Company and this Union," and requested the Company immediately to discharge Lester and a Harvey Anderson (who had also been recalled from the layoff), because these two men had been expelled from the Union for nonpayment of their union dues from September 1951 and October 1951, respectively On May 22, 1952, Vice-President Haffenreffer of the Respondent Company showed Lester the Respondent Union's letters requesting his discharge, and told Lester that he had no alternative but to comply with the Union' s request and let him go. Accordingly, Lester's discharge was effected at the end of the working day. However, in a letter dated and mailed to the Respondent Company on May 22, 1952, the Respondent Union withdrew its request for Anderson's discharge and Anderson was permitted to continue to work for the Respondent Company. T C. Conclusions As the first branch of his argument, the General Counsel contends that the union-security clause of the Respondents' 1951 contract was illegal, and that, in any event, the 1951 contract had been terminated on March 1, 1952, by the December 1951 notice given by the Union to the Company and, therefore, was no longer in effect on May 22, 1952, the date of Lester's discharge. In a second branch of his argument, the General Counsel contends that, even assuming the 1951 union-security clause to have been valid and in effect on May 22, 1952, it did not justify Lester's discharge upon the facts shown by the record. In developing this second line of argument, the General Counsel relies upon the facts that Lester was given no notice of his expulsion from the Union and that the Union, to the knowledge of the Company, necessarily included monthly dues defaults on the part of Lester during the period of his layoff, in computing the 3 months' default justifying his expulsion from membership under the provisions of the Union' s international constitution and its Local's bylaws. The General Counsel argues, in substance, that Lester's expulsion from the Union was improper and that on May 22, 1952, he was therefore still a member of the Union in good standing within the meaning of the union-security clause and the governing proviso of Section 8 (a) (3) of the Act (1) because his expulsion was effected without first notifying him as required by the Union's international constitution and its Local's bylaws; (2) because, under this constitution and these bylaws, Lester was entitled, even without making request therefor, to out-of-work stamps during the period of his layoff, and to exoneration from dues liability for that period; and (3) because, under the union-security clauses permitted by Section 8 (a) (3) of the Act, an employee is liable for union dues only during periods of actual employment by the con- tracting employer and not during periods of layoff. Broadening the last of these arguments, the General Counsel also contends that the Respondents improperly treated Lester during his layoff and upon his recall to work as a continuing employee of the Company, subject to the duty of maintaining his dues payment and membership as a condition of continuing em- ployment, rather than as a nonemployee entitled, upon again being hired as a new employee, (b) Members who fail to pay up all their arrearages at the meeting of the fourth month stand suspended. Union Secretary Gildea testified that the above provisions of the Local's bylaws have not been observed or enforced in view of the provisions of the amendments to the Act. 7 On May 22, 1952, the Board had not yet disposed of a complaint issued upon charges filed by Anderson against both of the Respondents in previous cases (Cases Nos. 1-CA-1043 and 1-CB-166) and involving an earlier situation. In his letter to the Respondent Company dated May 22, Union Secretary Gildea said that the Respondent Union withdrew its request for Anderson's discharge because he had been advised-by the General Counsel's trial attorney in the present case "that it is unlawful to cause the-discharge of an employee while an 'Unfair labor Charge' is pending before the National Labor Relations Board." In cross-examining Gildea iti the present hearing, the General Counsel's trial attorney challenged the accuracy of this version of his advice to Gildea. He suggested by his questioning, but Gildea denied, that he had remindedGildeaonMay 22,1952, of testimony given by Gildea at the hearing in the pre- vious cases to the effect that Anderson was not delinquent in the payment of his union dues. In view of the disposition by the undersigned of the issues in the present case, the undersigned be- lieves it unnecessary to determine why Gildeawithdrew his request for Anderson's discharge, but not for Lester's discharge. HAFFENREFFER & CO., INC. 215 to a new 30-day grace period for being obligated under the union-security clause and the proviso to Section 8 (a) (3) of the Act to join the Union and to pay union dues. Dealing first with the second general branch of the General Counsel' s argument , the under- signed is of the opinion, contrary to the General Counsel's contention, that if the union- security clause of the 1951 contract were valid and still in effect on May 22, 1952, it would have justified Lester' s discharge on that date. For under the pertinent provisions of the Union' s international constitution and its Local's bylaws, the undersigned finds, in disagree- ment with the General Counsel, that a member in default in the payment of his dues for more than 3 months automatically " forfeited" his membership and might be expelled from the Union without notice, 8 and also that his exoneration from dues liability during a period of layoff and unemployment depended upon his making demand for out-of-work stamps and a showing that he worked less than 40 hours for the month in question. 9 Finally, in view of the Board' s rejection of identical arguments in the Pressed Steel Car Company case (89 NLRB 276), the undersigned finds no merit either in the General Counsel's contention that under any type of valid union-security clause permitted by Section 8 (a) (3) of the Act, an employee returning to work after a layoff may not then be discharged at the Union' s request for dues delinquencies occurring during the layoffperiod, or in the General Counsel' s broader contention that, upon return to work after a layoff, an employee must be treated as a new employee, immune from discharge because of nonmembership in the Union or nonpayment of dues, for the first 30 days after his return to work. For the foregoing reasons , the undersigned finds, contrary to the General Counsel' s arguments , that if the Respondents ' 1951 union- security clause were valid (i e. in full compliance with the requirements of Section 8 (a) (3) of the Act), and still in effect on May 22, 1952, it would have justified the Union' s requesting, and the Company' s, effecting , Lester' s discharge on May 22, 1952. We turn now to the General Counsel' s contentions that the union-security clause of the Respondents' 1951 contract was no lodger in effect on May 22; 1952, and that. in any event, it was not legal under Section 8 (a) (3) of the Act. As has been noted, the contract executed by the Respondents on July 27, 1951, provided that it should be "in full force and effect from March 1. 1951 to March 1, 1952, and shall continue thereafter unless notice in writing of the desire to change or terminate this contract shall be given by either party to the other party thereto at least 60 days prior to March 1 of any subsequent year." On its face, the emphasized phrase appears susceptible of an inter- pretation that change or termination of the contract by the 60-day notice might be effected at the earliest either on March 1, 1952, or March 1, 1953. It appears; however , that by the Union' s giving notice in December 1951 "that the contract was to terminate" on March 1, 1952 (as Union Secretary Gildea testified), and by the parties' beginning negotiations thereunder at least as early as March 1. 1952, the parties themselves resolved ttie am$iguity of the language in their 1951 contract. Accordingly, theundersigned finds that the 1951 contract was terminated by the Union's timely notice onMarch 1. 1952. Furthermore, in accordance with Vice- President Haffenreffer' s uncontradicted testimony, the undersigned finds that , untilthe execution of the 1952 contract on August 20,1952, the Union and the Company had no oral or written agreement that the union-security provision of the 1951 contract should remain effective. Consequently, the undersigned concludes that between March 1, 1952, and August 20 , 1952, there was no union-security contract in effect and that the Union's request for Lester ' s discharge and the Company's compliance therewith on May 22, 1952, constituted respectively an unfair labor practice on the part of the Union within the meaning of Section 8 (b) (1) (A) and (2) of the Act, and an unfair labor practice on the part of the Company within the meaning of Section 8 (a) (1) and (3) of the Act There remains for consideration, however, the broader argument of the General Counsel that the union-security clause of the 1951 contract was illegal, that its retention and applica- tion M' the contracting parties during any portion of the 6 months preceding the filing of the charges in the present cases constituted unfair labor practices on the part of the Respondents; and, therefore, that even if the 1951 contract had not been terminated and was still in effect on May 22, 1952 , the union-security clause, being illegal, afforded no justification for Lester's discharge on that date. 9See footnote 6, above. In view of the provisions of article III, section 10 of the International's constitution which clearly provide for forfeiture of membership and expulsion without right to appeal, the undersigned does not regard the provision for notice of delinquencies in excess of 3 months which is set forth in article VIII, section 6 (a) of the Local's bylaws as making such notice a condition of suspension or expulsion. 9See footnotes 4 and 5 above . Thus article IV, section 17 (a) of the International 's constitu- tion provides that "it is the duty of the members to demand that the dues stamps are pasted in their membership books. " See also Pressed Steel Car Co., 89 NLRB 276. 2 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents in their briefs concede that on its face the 1951 union-security clause exceeded the limited form of union security permitted by Section 8 (a) (3) of the Act since , by requiring every employee to "make application within thirty (30) days from the date of the commence- ment of his employment ," it apparently failed to give nonunion employees who were on the payroll of the Company on the effective day of the contract , a grace period of 30 days after the execution of the contract before requiring them to join the Union as a condition of con- tinued employment , 10 But the Respondents argue that in the situation existing when the con- tract was executed , the union-security clause had actually no illegal effect and was therefore not illegal since (as they assert Trial Examiner Ralph Winkler found in his Intermediate Report in Cases Nos. 1 -CA-1043 and 1 -CB-166, involvingthe same parties) all the employees on the Company' s payroll on July 27, 1951 , the date the contract was executed , were in fact members of the Union and might , under the Board' s decisions , " have properly been required by the contract to maintain their membership as a condition of continued employment. How- ever , although the undersigned believes the Respondents ' argument to be logically and legally sound , i! he finds no basis for its factual premise (nor therefore for its present application) either in the instant record or in Trial Examiner Winkler ' s report . is Consequently upon the present record, the undersigned is of the opinion and finds that , even if the 1951 contract was not terminated on March 1 , 1952, the union-security clause in that contract was illegal; that its retention and maintenance by the Respondents during the 6 months preceding the filing of the charges in the present cases constitutes an unfair labor practice upon the part of the Respondents ; that it afforded no legal justification for the Union' s requesting, and the Company' s effecting, Lester' s discharge on May 22 , 1952; that , by requesting Lester's dis- charge , the Respondent Union caused the Respondent Company to discriminate against Lester in violation of Section 8 (b) (1) (A) and (2) of the Act ; and that the Company, by discharging Lester , and thus discriminating against him , committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in connection with the business of operations of the Respondent Company set forth 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 commerce and the free flow thereof. 10 See Charles A. Krause Milling Co., 97 NLRB 536, 542 ; Green Bay Drop Forge Co., 97 NLRB 642; Archer-Daniels-Midland Co., 97 NLRB 647; National Lead Co ., 97 NLRB 651, 652; Heekin Can Co., 97 NLRB 783 , 784-5; Krambo Food Stores , Inc., 98 NLRB 1320; New Castle Products , Inc., 99 NLRB 811. it See Charles A. Krause Milling Co., 97 NLRB 536; Portsmouth Clay Refractories Co., 97 NLRB 1144; Trio Industries , Inc., 97 NLRB 1146, 1147 ( footnote 1); Southland Paper Mills, 97 NLRB 896; Kuner Empson Co., 97 NLRB 898; General Chemical Division, 97 NLRB 1248; Grinnell Corp., 97 NLRB 1268; Jersey Millwork Co., 97 NLRB 1452. i2See Al Massera , Inc., 101 NLRB 837, and Bath Iron Works Corp., 101 NLRB 849, in which the Board has recently construed union-security clauses in the light of the situations to which they were intended to apply and were applied, and accordingly found them to be legal although they did not expressly grant to existing nonunion employees the prospective 30-day grace period to which they are entitled under the Act. is Presumably the Respondents rely upon Trial Examiner Winkler 's finding in his Inter- mediate Report that "All brewing department personnel at the time of the 1951 layoff had begun their last period of continuous employment and also had joined the Union before December 1946." Since the "1951 layoff" occurred on October 19, 1951, and the 1951 contract was exe- cuted on July 27, 1951 , TrialExaminer Winkler obviously did not find that all employees in the bargaining unit on the date of the execution of the 1951 contract were members of the Union. In passing, it should be noted that the General Counsel argues in his brief that even if all the employees in the bargaining unit were members of the Union on the date the 1951 contract was executed, their membership at that time was the result of the coercion of previous , illegal union-security clauses containing language identical with that of the 1951 clause . Here, as in the case of the Respondents' argument, the record does not disclose any factual basis for the General Counsel's argument . Consequently, the undersigned cannot make the findings nor draw the conclusions urged by the General Counsel . Furthermore, see Avco Manufacturing Corp., 97 NLRB 645, 646, in which the Board refused to consider such an argument in a representa- tion case, because charges challenging thevalidityofthe previous contracts had not been filed. HAFFENREFFER & CO., INC. 217 V. THE REMEDY Having found that the Respondents engaged in unfair labor practices , the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It will be recommended that the Respondent Company offer Fred Lester immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges ; and that the Respondent Union notify the Respondent Company in writing , and furnish a copy to Lester , that it has withdrawn its objections to the employment of Lester by the Respondent Company and requests the Respondent Company to reinstate him. Since it has been found that the Respondent Union and the Respondent Company are both responsible for the discrimination suffered by Lester , it will be recommended that they jointly and severally make Lester whole for the loss of pay he may have suffered by reason of the discrimination against him , by payment to Lester of a sum of money equal to that which he normally would have earned as wages from May 22, 1952, to the date of the Respondent Com- pany' s offer of reinstatement, less his net earnings during said period ;14 provided , however, that the Respondent Union's liability shall be tolled 5 days after it serves the written notice upon the Respondent Company of its withdrawal of objections to Lester ' s employment and its request for Lester' s reinstatement Loss of pay for the foregoing purposes shall be computed on the basis of each separate calendar quarter or portion thereof during the period of the Respondents ' liability. The quarterly periods, herein 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 Lester would normally have earned for each such quarter or portion thereof , his net earnings , if any , in any other employment during that period . Earnings in one particular quarter shall have no effect upon the back -pay liability for any other quarter. is It will also be recommended that the Respondent Company, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as back pay. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Local No. 14, International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, CIO, herein called the Respondent Union , is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By their retention and application , during the 6 months' period preceding the filing and service of the charges against them in the present cases , provisions of their 1951 contract requiring membership in the Respondent Union as a condition of employment by the Respondent Company , the Respondent Company committed unfair labor practices within the meaning of Section 8 (a) (1) and (3), and the Respondent Union committed unfair labor practices within the meaning of Section 8 (b) (1) (A ) and (2) of the Act. 3. By requesting the Respondent Company to discharge Fred Lester on May 22, 1952, because of nonmembership in the Respondent Union, the Respondent Union eaused the Respond- ent Company, an employer, to discriminate in regard to the hire and tenure of the Respondent Company's employees, and to encourage membership in the Respondent Union, and the Re- spondent Union thereby committed an unfair labor practice within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 4. By discharging Fred Lester on May 22, 1952, at the request of the Respondent Union and because Fred Lester was not a member of the Respondent Union, the Respondent Company discriminated against Fred Lester in regard tothehire and tenure of employment , encouraged membership in the Respondent Union, and thereby committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce with- in the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.) i4Crossett Lumber Co., 8 NLRB 440. 16 F. W. Woolworth Co., 90 NLRB 289.