Aluminum Workers International Union

ALUMINUM WORKERS INTERNATIONAL UNION 619 1. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 449, AFL, is not and has not been lawfully entitled to force or require, by means proscribed by Section 8 (b) (4) (D), any employer in Allegheny County, Pennsylvania, to assign leveling, aligning, and setting of refrigerated display case work on any supermarket con- struction project or any other store construction project to members of said Local 449, rather than to carpenters or to members of Carpenters District Council of Pittsburgh, Pennsylvania, and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL. 2. Within ten (10) days from the date of this Decision and De- termination of Dispute, the Respondent Union (Local 449) shall notify the Regional Director for the Sixth Region, in writing, what steps the Respondent has taken herein to comply with the terms of this Decision and Determination of Disputes. MEMBER LEEDOM took no part in the consideration of the above Decision and Determination of Disputes. Aluminum Workers International Union, Local No. 135, AFL and Leona H. Boness. Case No. 13-CB-303. May 6, 1955 SUPPLEMENTAL DECISION AND ORDER On August 5, 1954, Trial Examiner Ralph Winkler issued his In- termediate 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 Intermediate Report. Thereafter, the General Counsel filed- exceptions to the Intermediate Report and a supporting brief. On February 1, 1955, the Board issued its Decision and Order,' to which a copy of the Intermediate Report was attached, in which it reversed the Trial Examiner on the sole ground that Boness, on Sep- tember 9, 1953, had made a proper tender of dues, and found that the Respondent had violated Section 8 (b) (1) (A) and (2) of the Act by causing the unlawful discharge of Leona Boness after she had made a proper tender of back dues which was refused. The Board there- fore ordered that the Respondent make Boness whole for any loss of earnings suffered as a result of the discrimination practiced against her. On February 15, 1955, the Respondent filed with the Board a motion for reconsideration and/or remand, alleging, inter alia, that, i 111 NLRB 411. Subsequently, on February 7, 1955, the Board issued an Order Cor. recting Decision and Order. 112 NLRB No. 80. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since no action was taken by the Respondent with respect to Boness' discharge until after she had been requested to pay, and had refused to pay both her back dues and reinstatement fee, it is immaterial that she had made an attempt to pay her dues on September 9, 1953, and, accordingly, her September tender of dues does not render her subse- quent discharge unlawful. The motion for reconsideration is hereby granted, and the Board, having reconsidered the matter, sustains its original Decision and Order as noted herein, and, as a basis therefore, makes the following findings : 1. As the complainant had, at the time when she tendered her back dues on September 9, 1953,2 no knowledge of a specific reinstatement fee then owing, she was not legally obligated to pay a fee, the amount of which had neither been determined nor brought to her attention. Therefore, as a tender of all her-back dues %vas made prior to the Re- spondent's request for discharge, and was refused, we find, as we-did in the original Decision, that on September 9, Boness made a proper tender, by reason of which she was no longer delinquent as to back dues and became automatically entitled to union membership in good standing.' Accordingly, the subsequent act of the Respondent in causing the complainant's discharge was unlawful and a violation of Section 8 (b) (1) (A) and (2) of the Act.4 2. Even if the September 9 tender were not in itself sufficient basis upon which .to forestall a lawful discharge for failure to pay union dues, we still find without merit, as hereinafter noted, the Respondent's argument raised in its motion for reconsideration. As set forth in the Intermediate Report attached to the original Decision and Order, the Respondent, on September 24, informed the complainant for the first time that it would not accept her back dues without the payment of a $15 reinstatement fee. On October 27, and again on November 4, after Boness had several times tendered her back dues but had refused to pay the specified $15 reinstatement fee, the respondent requested her discharge. As the Company had ap- parently not been advised as to whether Boness had been expelled from the Union, the discharge request was not immediately acted upon. On November 6, Boness sent the Respondent by registered mail a letter allegedly containing 3 money orders covering her $15 rein- Unless otherwise indicated, all dates refer to 1953 s The Respondent argued in its motion for i econsideiation that the theory upon which the Board decided this case, namely, that the September 9 offer of back payment was proper and the September 10 rejection unlawful, was not advanced or relied upon by the General Counsel in the pioceedings before the Trial Examiner As the record discloses that the sufficiency of the tender was in fact litigated by the parties before the Trial Examiner and as we now find that the tender was sufficient, we find this contention without merit 6 We deem it unnecessary to find, and therefore delete the finding made in the earlier Decision and Order, that the complainant became automatically suspended from the Union on September 1. ALUMINUM WORKERS INTERNATIONAL UNION 621 statement fee, and her current and delinquent dues.' The Respondent refused the tender. Finally, on November 19, pursuant to the new re- quest by the Respondent, the Company discharged the complainant. Because the Trial Examiner concluded that October 27, the date of the Respondent's first discharge request, was the "cut-off" date, he found it unnecessary to resolve the issue of whether the November 6 tender by Boness included the reinstatement fee. Upon the facts here- in recited, and particularly in view of the undisputed fact that Boness purchased and signed the $15 money order on November 6, and sent the envelope containing her dues by registered mail to the Respondent on that (late, there appears to be insufficient evidence in the record to overcome Boness' corroborated testimony that she included the $15 money order in the envelope. Accordingly, we find that Boness did in fact tender her current and delinquent dues and the specified $15 reinstatement fee on November 6, and that the tender was refused by the Respondent. The Trial Examiner, relying upon an earlier Board decision,' in effect found that a belated tender does not forestall a valid discharge. However, we hold that a full and unqualified tender made anytime prior to actual discharge, and without regard as to when the request for discharge may have been made, is a proper tender and a subse- quent discharge based upon the request is -unlawful.' Accordingly, as we have found that the complainant herein tendered her back dues and reinstatement fee on November 6; that the Respondent thereafter re- fused to accept this tender; and that the complainant was subsequently discharged pursuant to the Respondent's request on November 19, we hold without merit the fact that the Respondent had requested the dis- charge on October 27, and find that the complainant, in making the maximum tender demanded by the Union 8 before her actual discharge, 6 Boners testified, as corroborated by other General Counsel witnesses, that on the morn- ing of November 6, upon the advice of the Company secretary, and with $15 advanced to her by the secretary, Bones' and another employee went to the post office, made out a $15 money order, enclosed it along with 2 other $6 money orders. 2 explanation slips, and her dues hook, in an envelope and mailed it to the Respondent The Respondent admits receiv- nip on November 6, the envelope enclosing the 2 $6 money orders, but claims that it con- tained no money order covering the X15 icinstatement fee Sometime thereafter, Tetzlaff, president of the Respondent Union, attempted to give the envelope back to Boness who refused to accept it On or about November 18, Tetzlaff turned the envelope over to the company president along with a new request for Boness' discharge The company presi- dent in turn, gave it to lioness when she was discharged on the following day. Boness and the eompanv secretary testified that the $15 money order was among the contents of the envelope when it was returned to Boners on November 19 The envelope, the explana- tion slips, and photostatic copies of the 2 $6 money orders and the November 6, $15 money order, are part of the record in this ease 0 Chisholm -Ruder Company. Ine . 94 NLRB 508 To the extent that this decision is inconsistent with the Chssholnz -Ryder case , that case is hereby overialed 8 We may assume, and need not decide, the legality of requiring the payment of the particular reinstatement fee here involved See Food Machines y and Chemical Cot pot anon, 99 NLRB 1430 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was protected against discharge based on the Respondent's request. We conclude, therefore, that the Respondent Union's act in causing the complainant's discharge was a violation of Section 8 (b) (1) (A) and (2) of the Act. As the effect of the unfair labor practices upon commerce, the remedy, the conclusions of law, and the Order of our original Decision and Order are not inconsistent with our findings herein, we hereby adopt them as part of this Supplemental Decision and Order. MEMBER LEEDOM took no part in the consideration of the above Sup- plemental Decision and Order. Sutherland Paper Company and United Paper Workers of Amer- ica, CIO, Petitioner. Case No. 7-RC-2677. May 6, 1955 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil C. Farkas, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) andSection 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance employees at the Employer's Kalamazoo, Michigan, operations. The Independent, which has represented all production and maintenance employees since 1937, and the Paper Makers, are in substantial agree- ment with the unit position of the Petitioner. The Printing Pressmen, however, seeks to sever from the existing production and maintenance unit all printing and cutting pressmen, feeder operators, their assist- ants, helpers, and apprentices. Local 507 desires to represent the same 1 The following labor organizations were permitted to intervene at the hearing : Inde- pendent Union of Sutherland Paper Company Employees, Inc, herein called Independent ; International Brotherhood of Paper Makers, AFL, herein called Paper Makers , Interna- tional Printing Pressmen & Assistants' Union of North America, AFL, herein called Print- ing Pressmen , and Painting Specialties & Paper Products Union, Local 507, affiliated with International Printing Pressmen & Assistants' Union of North America, AFL, herein called Local 507. 112 NLRB No. 88.