Aluminum Workers International Union

ALUMINUM WORKERS INTERNATIONAL UNION 411 WE WILL NOT cause or attempt to cause M . B. Morgan, his agents, suc- cessors, or assigns, or any member of the PDC of A to discriminate in regard to the hire or tenure of employment of G. J. McDaniels or any other employee or prospective employee in violation of Section 8 (a) (3) of the said Act. WE WILL NOT in any manner restrain or coerce employees of M. B. Morgan, d/b/a M. B. Morgan Painting Contractor, his successors and assigns , in their exercise of the right to self-organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make G. J. McDaniels whole for any loss of pay suffered by reason of the discrimination against him. BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL 902, AFL, 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. ALUMINUM WORKERS INTERNATIONAL UNION, LOCAL No. 135, AFL and LEONA H. BONESS. Case No. 13-CB-303. February 1, 1955 Decision and Order On August 5, 1954, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act and recom- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The 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. However, the Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case and hereby reverses the Trial Examiner for the reasons hereinafter noted. The Trial Examiner found that the Respondent did not violate Section 8 (b) (1) (A) and (2) of the Act by wrongfully causing the discharge of Boness, the complainant. In reversing the Trial Exam- iner, we do so solely on the ground that Boness, on September 9, 1953, made a proper tender of dues which was rejected by the Respondent. As we deem it unnecessary to consider the various grounds upon which the Trial Examiner based his finding of no unfair labor practice, we do not adopt his Intermediate Report other than that portion which relates to the facts surrounding the discharge. 111 NLRB No. 63. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set forth in the Intermediate Report, the Respondent Union's constitution and bylaws provide for automatic suspension of members after 2 months' delinquency in monthly dues, and further provide that "the reinstatement fee for suspended members shall not be less than fifteen (15) Dollars."' On September 1, 1953, the complainant became automatically suspended from the Union. On September 9, 1953, the complainant tendered her dues for July, August, and Septem- ber. These dues were returned to her on September 10, 1953, with a note stating "no union dues acceptable except at union meetings." 2 Nothing was said about payment of a reinstatement fee. Not until a subsequent tender of dues on September 24, 1953, which was also re- fused, was she put on notice that the Union would not accept her dues until she paid a $15 reinstatement fee. In fact, the record does not indicate that prior to that time the Union had set the amount to be paid under the reinstatement provision of its constitution and bylaws. In view of the fact that Mrs. Boness tendered her delinquent and current dues on September 9, 1953, acceptance of which was refused for reasons unrelated to the payment of a reinstatement fee which was not demanded until 2 weeks later, we find that the complainant on that date did all that she was required to do to cure her delinquency. We therefore conclude, contrary to the finding of the Trial Examiner, that, as proper tender of dues was made prior to the Respondent Union's request for discharge, and as this tender was refused by the Respondent, the Respondent Union's subsequent act in causing the complainant's discharge was unlawful and a violation of Section 8 (b) (1) (A) and (2) of the Act.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, which have been found to constitute unfair labor practices occurring in connection with the operations of the Company, described in the Intermediate Report, 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 of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from this and like and related conduct, and to take certain affirmative action designed to effectuate the policies of the Act. 1 Emphasis supplied. a Although a constitutional provision provides that dues are due and payable on the first regular monthly meeting , it nowhere appears that a union member is precluded from paying his dues other than at a union meeting, such as may be inferred from the Union's note. s See Biscuit and Cracker Workers Local Union No. 405, AFL, 109 NLRB 985. ALUMINUM WORKERS INTERNATIONAL UNION 413 We shall order the Respondent to make Leona Bones' whole for any loss of pay suffered by her as the result of the Union' s unlawful con- duct, by paying to her a sum of money equal to the amount she would normally have earned as wages from the date the discrimination oc- curred to the date she is reinstated by the Corporation in accordance with the latter's normal business operations. In computing the amount of back pay due to the Charging Party for this period, the customary formula of the Board set forth in F. W. Woolworth Com- pany, 90 NLRB 289, shall be applied. As the Trial Examiner did not find that the Respondent Union had discriminated against the Charging Party, the period from the date of the Intermediate Report to the date of the Order herein shall, in accordance with our usual practice, be excluded in computing the amount of back pay due her' We shall further provide that the Union may terminate its liability for further accrual of back pay to the Charging Party by notifying the Corporation and the Charging Party that it has no objection to her reinstatement. The Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice.' In addition to computing the back pay due Leona Boness, the Re- spondent shall deduct from the amount payable to Boness such sum as would normally have been deducted from her wages for deposit with State and Federal agencies on account of social security and other similar benefits. The Respondent shall pay to the appropriate State and Federal agencies to the credit of Boness, and The Metal Ware Corporation, a sum of money equal to the amount which, absent dis- crimination, would have been deposited to such credit by the Corpora- tion, either as a tax upon the Corporation or on account of deductions made from Boness' wages by the Corporation on account of such social security or other similar benefits.' CONCLUSIONS OF LAW 1. The Metal Ware Corporation , a Wisconsin corporation, is en- gaged in commerce within the meaning of the Act. 2. Aluminum Workers International Union, Local No. 135, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 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. By causing and attempting to cause The Metal Ware Corpora- tion to discharge Leona Boness, Respondent Union has engaged in, d Utah Construction Co., 95 NLRB 196. s Pinkerton's National Detective Agency, Inc., 90 NLRB 205; Local Union 595, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL, 109 NLRB 73. 6 Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in, unfair labor practices within the meaning of Sec- tion 8 (b) (2) of the Act. 5. The aforesaid labor practices affect commerce within the mean- ing of Section 2 (6) and (7) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Aluminum Work= ers International Union, Local No. 135, AFL, and its officers, repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause The Metal Ware Corporation to discriminate against its employees in,violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing the employees of The Metal Ware Corporation in the exercise of any right guaranteed 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 condi- tion 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 Leona Boness and The Metal Ware Corporation, in writ- ing, that the Respondent withdraws all objections to the employment of Leona Boness and that it requests The Metal Ware Corporation to offer Boness immediate and full reinstatement to her former or sub- stantially equivalent position. (b) Make whole Leona Boness for any loss of earnings suffered since November 19, 1953, by reason of discrimination against her, in the manner set forth in the section entitled, "The Remedy." (c) Post at its business office in Two Rivers, Wisconsin, and all other places where notices to its members are customarily posted, cop- ies of the notice attached hereto marked "Appendix." ° Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by an official representa- tive of the Respondent Union, be posted immediately upon receipt thereof and maintained for a period of 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 said notices are not altered, de- faced, or covered by any other matter. I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ALUMINUM WORKERS INTERNATIONAL UNION 415 (d) Mail to the Regional Director for the Thirteenth Region signed copies of the notices attached hereto marked "Appendix," for posting, The Metal Ware Corporation willing, at said Corporation's Two Riv- ers, Wisconsin, plant, in places where notices to employees are cus- tomarily posted. (e) Notify the Regional Director for the Thirteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. Appendix NOTICE TO ALL EMPLOYEES OF THE METAL WARE CORPORATION, Two RIVERS, WISCONSIN, AND TO ALL MEMBERS OF ALUMINUM WORKERS INTERNATIONAL UNION, LOCAL No. 135, AFL 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, as amended, we hereby notify the employees that : WE WILL NOT cause or attempt to cause The Metal Ware Corpo- ration to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT restrain or coerce employees of The Metal Ware Corporation in the exercise of any right guaranteed under Sec- tion 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act. WE WILL make whole Leona Boness for any loss of earnings suf- fered as a consequence of the discrimination against her. WE WILL notify Leona Boness and The Metal Ware Corpora- tion, in writing, that we have no objection to the employment of Leona Boness and request that the Company offer to her im- mediate and full reinstatement to her former or substantially equivalent position. ALUMINUM WORKERS INTERNATIONAL UNION, LOCAL No. 135, AFL, 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. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Leona H. Boness, an individual, the General Counsel for the National Labor Relations Board issued a complaint on April 22, 1954, alleging that Respondent Local No. 135, Aluminum Workers International Union, AFL, has vio- lated Section 8 (b) (1) (A) and (2) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge were served upon Respondent Local, and Respondent Local has filed an answer denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in Two Rivers, Wisconsin, on May 26, 1954, before the duly designated Trial Examiner. The General Counsel and the Respond- ent were represented by Counsel and all parties had full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the is- sues. The parties were given opportunity at the close of the hearing to present oral argument, and both the General Counsel and the Respondent have filed briefs with the Trial Examiner. Motions by the Respondent to dismiss the complaint are disposed of in accordance with the following findings of fact and conclusions of law. Upon the record in the case, and upon observation of the demeanor of witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Metal Ware Corporation, herein called the Company, is a Wisconsin corpora- tion with a plant in Two Rivers, Wisconsin, where it is engaged in the manufacture of kitchenware and electrical appliances. The value of the Company's interstate pur- chases and shipments in 1953 exceeded $250,000 and $1,000,000, respectively. I find that the Company is engaged in commerce within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel alleges that Respondent Local 135 entered into certain union- security agreements in 1953 and thereafter caused Leona Boness to be discharged in November 1953 because of her failure to maintain her union standing as allegedly required by such agreements. The General Counsel attacks the legality of the agree- ments and the discharge on the ground that Respondent Local 135 had never achieved compliance with the filing and affidavit requirements of Section 9 (f), (g), and (h) of the Act until after the discharge in question. Section 8 (a) (3) provides, in pertinent respects, that an agreement which re- quires union membership as a condition of employment following the "effective date of such agreement" is unlawful unless the "labor organization . has at the time the agreement was made or within the preceding 12 months received from the Board a notice of compliance with Section 9 (f), (g), and (h)... . A. Organizational and contract history of Respondent Local 135 In May 1952 the Company entered into a 2-year collective-bargaining agreement with Federal Labor Union #20678, International Council of Aluminum Workers Unions, AFL. Federal Labor Union #20678 was in compliance with Section 9 at the time, and it maintained such compliance until December 31, 1952. This May 1952 contract covered the usual matters of collective bargaining, including a pro- vision that all employees covered by the agreement shall, as a condition of employ- ment, be "members in good standing" in the Union and that new employees shall become such members after 30 days' employment. In February 1953, the International Council, with which Federal Labor Union #20678 was affiliated, was chartered as an International Union by its parent or- ganization-the American Federation of Labor-and its name became Aluminum Workers International Union, AFL. This change from International Council to In- ternational Union did not come about because of any rival unionism or organizational schism or defunctness or the like; rather, the change was a normal organizational de- velopment under American Federation of Labor aegis and was in fulfillment of that portion of the Council's preamble which provided that the Council was organized under the American Federation of Labor "for the purpose of obtaining an Interna- tional Charter from the American Federation of Labor." Shortly after receiving its charter, Aluminum Workers International Union, AFL, held its constitutional and first annual convention in March 1953. Accredited repre- ALUMINUM WORKERS INTERNATIONAL UNION 417 sentatives from all federal labor unions affiliated with the Council, including Federal Labor Union #20678, were present, and they adopted the International Union's con- stitution, with some differences between the constitutions of the Council and the In- ternational Union. The International Union constitution prescribes bylaws for its local union affiliates, article XII of such bylaws providing, in part, that: All federal labor unions of workers within the jurisdiction of the International Union which are in existence at the time this constitution is adopted, shall affil- iate with this International Union within thirty (30) days. In so affiliating, such federal labor unions shall relinquish their federal charters and seals and obtain local union charters and seals from the International Secretary-Treasurer, and all persons holding good standing membership in such federal labor union shall become members of the Local Union receiving such charter. Any such fed- eral labor union affiliating with the International Union shall retain its entire assets, including its real, personal and intangible property, and including all col- lective bargaining agreements, and all of its liabilities, but in connection with all such assets, agreements, and liabilities and for all other purposes such federal labor union affiliating with the International Union shall take all necessary steps to effect a change in its name and number to conform with the name and num- ber appearing on the Local Union charter issued it by the International Union. Such federal labor unions having established defense funds may preserve, main- tain and continue such funds upon affiliation with the International Union. In March 1953, after the International Union's constitutional convention, mem- bers of Federal Labor Union #20678 unanimously approved the change from Coun- cil to International and, in accordance with the aforestated article XII, they ob- tained a new charter and seal from the International and became Aluminum Workers International Union, Local No. 135, AFL. At or about the same time in March 1953, the membership of Respondent Local No. 135 also unanimously adopted a local constitution and bylaws-identical in substantial respects to the constitution and bylaws of Federal Labor Union #20678. The officers of Federal Labor Union #20678 automatically carried over as officers of Respondent Local No. 135 without an election, and Respondent Local 135 otherwise carried over, with unbroken con- tinuity, the internal functioning and financial position of Federal Labor Union #20678. As in the case of the Council and International, the change in name from Federal Labor Union #20678 to Local No. 135 was merely an organizational inci- dent stemming from the grant of an International charter to the Council, and not because of any rival unionism or schism or defunctness at the local or any other level. The constitution adopted by Respondent Local 135 in March 1953 provides, among other things, that members are in good standing "until expelled or suspended and not reinstated" (Federal Labor Union #20678 had an identical constitutional pro- vision); that members are "automatically suspended upon becoming two months delinquent in dues" (Federal Labor Union #20678 had a 3-month period); that Respondent shall not accept any dues until the member first pays any reinstatement fee owed by such member (Federal Labor Union #20678 had an identical pro- vision); and that the reinstatement fee for suspended members shall not be less than $15 (Federal Labor Union #20678 had a similar provision). Also, in March 1953, the International Union advised the Board of its change in name from International Council, and the International Union has been in com- pliance at all times since April 1953.1 The organization entitled Local No. 135, Respondent herein, first achieved compliance under such name in April 1954. The Company and Respondent Local No. 135 maintained the aforementioned 1952 agreement upon Respondent's change in name in March 1953. In May 1953 they agreed upon, and in December 1953 they executed, a "Supplement" to the 1952 agreement which, it is recalled, ran until May 1954. The 1952 supplement provided that "the identification of the `Union' (in the May 1952 Contract) shall be Aluminum Workers International Union, Local No. 135"; that articles V, IX, and X of the May 1952 agreement, dealing with vacations, grievances, and wages be amended in certain respects, effective May 18, 1953; and that article XI, the duration clause of the 1952 agreement, be amended by adding a provision that, effective as of September 15, 1953, the Union and the Company agree to extend the "present contract" to May 16, 1955, with reopening for wages and fringe benefits in accordance with article X of the contract. No amendment or other reference was made to other substantive provisions of the May 1952 agreement, including the union-security provisions thereof. And in settlement of a strike begun in late August 1 Based on information from the Board's compliance section in Washington, D. C. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1953, Respondent Local 135 and the Company executed a "Settlement Agreement" on September 15, 1953, in which the parties agreed upon the method of recalling em- ployees; amended article IX of "the existing Labor Contract" to contain a no-strike provision (identical with a provision contained in the aforementioned Supplement); and also agreed to extend the "present contract" to May 16, 1955 (as similarly provided in the supplement). B. Contract and compliance issues The General Counsel asserts that Respondent Local 135 is a "new" labor organiza- tion which did not come into being until March 1953; and he thereupon claims that the 1953 supplement and settlement agreement were "new" agreements with such "new" organization, which "new agreements" incorporate the union-security pro- visions of the 1952 agreement of Federal Labor Union #20678. Accordingly, con- tends the General Counsel, these 1953 union-security agreements were unlawful because of Respondent's failure to achieve Section 9 compliance until April 1954. As these agreements were unlawful for such reason, the General Counsel continues, they may not justify Respondent's causing the discharge of Boness in November 1953 for her loss of "good standing" in the Union as such contracts require. The General Counsel concedes, however, apart from compliance considerations, that the foregoing contract conditions of employment, including dues and reinstatement fee requirements, are otherwise valid. See Food Machinery and Chemical Corpora- tion, 99 NLRB 1430. Respondent claims that it and Federal Labor Union #20678 are one and the same labor organization and it accordingly denies that the 1953 supplement and settle- ment agreement were made by it as a "new" labor organization. Respondent there- upon asserts that the only material compliance date is the effective date of the 1952 agreement upon which it relies in justifying its conduct as to Boness, and it claims in this connection that it was in compliance at that time under the name of Federal Labor Union #20678 and was therefore entitled to invoke the 1952 agreement against Boness. Because, however, this organizational relationship asserted by Respondent relates to the ultimate issue as to whether the 1952 compliance status of Federal Labor Union #20678 inures to the benefit of Respondent Local 135 in 1953, the General Counsel claimed at the hearing that such issue and related evidence is beyond the proper scope of this proceeding in view of the established principle that com- pliance matters are solely for the Board's administrative determination and may not be litigated in complaint or representation cases. See Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB 490, N. L R B v. Sharples Chemicals, Inc., 209 F. 2d 645, 650-651 (C. A. 6); American Rubber Products Corp. v. N. L. R. B., 214 F. 2d 47 (C. A. 7). The nonlitigabihty rule asserted by the General Counsel was formulated in cases where a party sought to attack the Board's administrative determination as to the compliance status of either a petitioning union in a representation context or a charg- ing union in an unfair labor practice proceeding. Here, however, the General Counsel alleges noncompliance of a party respondent and predicates the unfair labor practice allegation on such ground. It would seem a deprivation of due process to deny a party respondent an opportunity to litigate the merits of the very matter at issue. Moreover, the litigability of compliance matters in the present context seems warranted by the so-called "fronting" cases, where parties are permitted to show that a noncomplying union is the real party in interest in whose behalf a nominal petitioner or charging party filed a petition or charge. See American Rubber Products Corp. v. N. L. R. B., supra. For what Respondent seeks to do here is to show that its organization was the real party in interest to the 1952 con- tract and to Federal Labor Union's compliance status, by whatever name it be called. I therefore deny the General Counsel's motion to strike the evidence set forth above respecting the organizational nexus between Respondent Local 135 and Federal Local Union #20678. And I also reject the General Counsel's additional contention that the Board is itself precluded from looking beyond the name of a labor organization in determining its compliance status under a different name. Under the General Counsel's view, should a labor organization change only its name while it is in compliance with Section 9, the same organization newly named would automatically and for all purposes fall out of compliance until it makes a com- pletely new filing under its new name, no matter what the circumstances may be. I cannot accept such asserted proposition of law which would, in effect, strip the Board of the exercise of all judgment in compliance matters regardless of unusual or mitigating considerations and which would thus limit the Board's function in these respects solely to that of a clerk even in a case where alleged noncompliance is the very basis upon which a complaint has been issued. ALUMINUM WORKERS INTERNATIONAL UNION 419' A change in name, or constitutional changes such as were made here and which a union may make without changing its name, or a change in the name of its-imme- diate parent affiliate, all within the structure of the same parent federation (in this case, the American Federation of Labor), do not, without more, change the essential character of a labor organization or affect its status under the Act.2 I conclude, therefore, that the International Council and the International Union are the same, labor organization and that Federal Labor Union #20678 and the Respondent are a unity as well, and that the "continuity of organization" between these organizations was preserved despite the changes in question. See Continental Oil Co. v. N. L. R. B., supra. Respondent Local 135 was therefore the labor organization party to the May 1952 contract after March 1953. (See cases cited in footnote 2, above.) And I further conclude upon all the foregoing, that the compliance and contractual status of Respondent Local 135 is that of Federal Labor Union #20678 within the circumstances of this case, and that it was therefore entitled to performance of the union-security provisions of the 1952 agreement. The General Counsel further asserts in his brief that, even on the assumption that Respondent Local 135 occupies the same compliance and contractual position as Federal Labor Union #20678 and was therefore not a "new" labor organization when it agreed upon the supplement and settlement agreement in 1953, this supple- ment and settlement agreement were unlawful, nevertheless, because they renewed the 1952 union-security provisions during a period (May and September 1953) when Respondent's compliance had lapsed. (It is recalled that Federal Labor Union #20678 went out of compliance on January 1, 1953, and that Respondent Local 135 did not come into compliance under such name until April 1954.) However, neither the 1953 supplement or settlement agreement purport to amend or otherwise affect the union-security provisions of the May 1952 contract except to extend the effective term of such provisions until May 1955. As the 1952 agreement was effective until May 1954, the actual effect of the 1953 supplement and settlement agreement, inso- far as union-security provisions are concerned, is only to provide for an extension which does not become operative until May 1954. Nor is Tacoma Harbor Lumber and Timber Co., 108 NLRB 912, upon which the General Counsel relies, authority for a contrary interpretation. Unlike the May 1952 contract under consideration here with its fixed original term of 2 years, the contract in the Tacoma case had no fixed term; rather, it provided that it "remain in full force and effect as a continuing agreement" and it was still in operation at the hearing date in that case, more than 13 years after its execution in 1940. The Board's holding that the Tacoma contract was renewed within the meaning of Section 102 and.8 (a) (3) of the Act on each of the 13 occasions when the parties agreed to raise wages during the 13 years of the contract's operation is, therefore, not controlling on the situation at issue in this case. The validity of a union-security agreement which does not become operative until a future specified date depends, I find, on the compliance status of the contracting union when the provisions become operative and not when the contract is executed. The situation in this respect is the same, in principle, as a union-security agreement which postpones the effective date of such provisions until the contracting union achieves compliance. See Northwest Magnesite Company, 101 NLRB 85, 87-88. As the union-security provisions of the 1953 supplement and settlement agreement did not become operative until May 1954, their validity turns on Respondent's com- pliance status in May 1954; and in May 1954 the Respondent was in compliance with Section 9 of the Act. I therefore conclude that the union-security provisions of the May 1952 contract were lawfully operative in Respondent Local 135's favor in November 1953 when Boness was discharged and I further find that Respondent Local 135 did not violate the Act by entering into the 1953 supplement and settlement agreement as alleged by the General Counsel. C. The alleged discriminatory discharge The Respondent changed its constitution and bylaws in March 1953, as already indicated, to provide automatic suspension of members after 2 months' delinquency 2N L R B v. Harris-Woodson Co, Inc, 179 F. 2d 720, 723 (C. A. 4) ; Continental Oil Co V N L R B, 113 F. 2(1 473, 477 (C A 10), cert denied on this point, 313 U. S 212; Ohio Hoist and Manufacturing Company, 108 NLRB 561; New Jersey Oyster Planters and Packers Association, Inc, 101 NLRB 538; Charles Beck Machine Corporation, 107 NLRB 874. 344056-55-vol 111-28 4 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in monthly dues, as compared with the 3-month period theretofore provided. Mem- bers iiiiammously approved this change together with other constitutional matters at the March 1953 membership meeting, and Respondent further advised its members to this effect by a notice which was posted on the employee bulletin board at the plant immediately after the change was effective. Each month from the time this 2-month suspension rule went into effect, the Union also posted a notice on the bulle- tin board listing the names of all members who were delinquent and those who would be delinquent by the end of the month. Boness was a union member during her entire employment period of 3 years with the Company. Her dues were paid up only through June 1953 when her name ap- peared on the delinquency list posted by Respondent on the plant bulletin board on August 10, 1953. The Respondent asserts, and the General Counsel admits, that Boness would be automatically suspended and subject to valid discharge under exist- ing contract requirements-apart, that is, from the General Counsel's compliance contentions which I have rejected-unless she tendered her dues before September 1. Boness did not again tender dues until on or about September 10, by which time she was automatically suspended, and Respondent returned the $6 money order for the $2 monthly dues for July, August, and September, which Boness had mailed to Respondent on that occasion. Boness, at that time, also owed a minimum $15 rein- statement fee because of her automatic suspension for dues delinquency and, as also stated above, such fee must be paid before arrearages are acceptable. Boness ten- dered her arrearages to Respondent Local a week later, but again without tender of the reinstatement fee, and the tender was refused. On September 21, 1953, Respondent requested the Company that Boness and sev- eral other named employees be notified of their dues delinquencies and that they would be subject to discharge unless they regained their good standing in the Union within a 5-day grace period. Edna Griep, a company official, replied to Respondent the next day that "our employees are aware of the fact that they need to be in good standing in the Union" and that the named employees had left their dues at the com- pany office where they were available to the Union. Such deposit by Boness did not include a reinstatement fee and Respondent Local 135 did not pick up her dues at ^Gnep's office. At a union meeting on September 24, 1953, Boness again tendered her $6 arrear- ages without a reinstatement fee, whereupon Respondent President Lester Tetzlaff informed Boness on this occasion that the Respondent would not accept her dues without payment of a $15 reinstatement fee. Boness told Tetzlaff that she did not have to and "wouldn't" pay a- reinstatement fee and Respondent refused Boness' tender once more. Boness testified this was the first time she was advised she would have to pay a reinstatement fee .3 On or about October 10, Boness again tendered her dues for July, August, and September together with dues for October, November, and December. Boness advised Respondent on this occasion that she would not pay ,the $15 reinstatement fee, whereupon Respondent again refused Boness' tender. Finally, on October 27, 1953, and Boness still not having tendered her reinstate- ment fee, the Respondent notified the Company to discharge Boness for failure to pay her dues. The Company did not act on the Respondent's request, and on Novem- ber 4 the International's secretary-treasurer, William Cowley, renewed to Company -Official Griep the Union's request that Boness be discharged. Immediately after this conversation between Griep and Cowley the Company sent Cowley a telegram stat- ing: "Re demand for discharge of [Boness], up to now we have not received notice that [she has] been expelled from the Union." On receipt of this wire, Cowley noti- fied Griep that Boness had automatically lost her union standing upon failure to pay her dues; and Cowley once more demanded Boness' discharge and suggested that the ,company attorney get in touch with the Respondent's attorney, Herbert Thatcher. 8 Boness testified that she was aware of the automatic suspension rule for dues delin- quency even under the Federal Labor Union's bylaws, but that she had not been aware of the change from the 3 to 2 months period in such connection. She testified that dur- ing her entire 3 years' employment she paid her dues on the third month of the 3-month period, however, the record shows that her first dues payment, after the 2 months rule was in effect, was made, in May 1953 for the months of April, May, and June. This sole variation in Boness' payments was in accord with the new 2-month's rule. Boness did not deny actual knowledge that her name appeared on Respondent's August delinquency notice at the time of such posting. ALUMINUM WORKERS INTERNATIONAL UNION 421 The Company meanwhile advised Respondent that it would not discharge an em- ployee for dues delinquency until such employee were expelled from the Union. On November 5, according to the testimony of Griep and the stipulated testimony of Company Attorney Murphy, Murphy thereupon reported to the Company that he had discussed the matter with Thatcher and that Thatcher had allegedly advised Murphy to have Boness send her reinstatement fee and her dues to the Respondent. Thatcher testified that he merely told Murphy that Respondent Local 135 had a right to demand an employee's discharge for nonpayment of uniform reinstatement fees, and he denied advising Murphy to have Boness tender her reinstatement fee and dues. On November 6, according to the testimony of Boness and other witnesses for the General Counsel, Boness allegedly sent the Respondent by registered mail three money orders covering her reinstatement fee and her monthly dues for July through December. According to Respondent's witnesses, this registered mail contained monthly payments only and no reinstatement fee. Whether or not a reinstatement fee was enclosed, Respondent refused the tender. By letter dated November 18, 1953, the Respondent advised the Company that Boness had been expelled from union membership and it again requested her discharge. The Company discharged Boness the following day. D. Further findings and conclusions as to Boness The General Counsel admits, by way of recapitulation, that apart from compliance matters, the dues (including reinstatement fee) requirements of the contract were a valid condition of employment and that Boness was automatically suspended from good standing on September 1 and was thereupon subject to lawful discharge unless she tendered her reinstatement fee before the Respondent requested her discharge. (See Chisholm-Ryder Company, Inc., 94 NLRB 508, to the effect that a belated tender does not forestall a valid discharge.) The cutoff date in the present case, therefore, is October 27 when the Respondent made its first discharge request. It is irrelevant and therefore unnecessary to decide whether Boness tendered a reinstate- ment fee on November 6; even if she did, the Respondent is not to be prejudiced be- cause the Company failed to comply with Respondent's proper demand on October 27 and instead imposed an expulsion condition not required by the contract. The General Counsel further asserted at the hearing, however, that Respondent Local 135 had waived the reinstatement fee and it relied in this connection on Griep's version of the Thatcher-Murphy conversation, the fact that the August 10 delin- quency notice did not specifically state that Boness would have to pay a reinstate- ment fee if she failed to pay her required dues before September 1, and the fact that Respondent did not mention a reinstatement fee when it rejected Boness' tenders in early September and before September 24. The General Counsel has apparently abandoned these bases for a waiver for he does not rely on them in his brief, and I shall not discuss them further except to state that I consider them without merit. In his brief, however, the General Counsel does urge a waiver on the basis of Respond- ent's constitutional requirement that "the reinstatement fee for suspended members shall not be less than $15." Asserting that this requirement is ambiguous in that it does not specify a "definite" reinstatement fee, the General Counsel now contends that Boness "could [not] be required, for discharge purposes, to pay a reinstatement fee until such time as the Union determined and communicated the exact amount of the reinstatement fee." Accordingly, asserts the General Counsel, Boness' tender of dues in September and before the amount of the reinstatement fee was specified on September 24 constitutes a waiver of any reinstatement fee and makes the prior September tenders proper. Certainly, Boness' tailure to pay her dues before September and her consequent loss of "good standing" cannot be attributed to any claimed ambiguity in the amount of the reinstatement fee. And that Respondent did not specify such amount early in September also could not have prejudiced her, for it did notify her of the precise amount on two later occasions before requesting her discharge. This is scarcely a waiver situation. Compare Busch Kredit Jewelry Co., Inc., 108 NLRB 1214. I conclude, therefore, that Respondent did not waive Boness' reinstatement fee and that Respondent did not otherwise cause her discharge in violation of the Act. No other unfair labor practices having been found, I shall recommend that the complaint be dismissed in its entirety. [Recommendations omitted from publication.]