United Brotherhood of Carpenters, ETC.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record in this case and under Board precedent3 he has sufficient community of interests with the production and maintenance em- ployees to be included in the certified bargaining unit. In these cir= cumstances, we shall direct that an election be held to determine whether or not the office porter desires to be represented by the Peti- tioner for purposes of collective bargaining' If he votes for the Petitioner he will be taken to have indicated his desire to be included in the production and maintenance unit currently represented by the Petitioner. ORDER IT I5 HEREBY ORDERED that the certification of representatives in Case No. 32-RC-809 be, and the same hereby is, amended so that the unit for which the Petitioner was certified should include the linter room foreman, the cake mill operator, and the fiber plant operator. [Text of Direction of Election omitted from publication.] 3 Palmer Manufaoturing Company, 103 NLRB 336, 389. `The Enterprise Company, 106 NLRB 798. United Brotherhood of Carpenters and Joiners of America, Mill- men's Local 824, AFL-CIO and Eugene Beauchamp. Case No. 7-CB-446. February 23, 1956 DECISION AND ORDER On June 23, 1955, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and the General Counsel filed a memorandum in support of it. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and memorandum, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations except insofar as they are inconsistent with the findings, conclusions, and order set forth below. The Trial Examiner found, in substance, that the Union violated Section 8 (b) (2) and (1) (A) of the Act by threatening to cause and causing the Company to discriminate against employee Beau- champ because he refused to attend a union meeting to be initiated into membership. Our dissenting colleague argues, however, that be- 115 NLRB No. 85. UNITED BROTHERHOOD OF CARPENTERS, ETC. 519 cause new employees were required, under the Union's contract with the Company, to join the Union on completion of their probationary period of employment, and Beauchamp gave no good reason for not attending the initiation meeting and made no tender of union dues, there was no violation of the Act. We do not agree. Section 8 (a) (3) of the Act permits an employer and a labor or- ganization under certain circumstances to make an agreement requir- ing as a condition of employment membership in the labor organization on or after the 30th day following the beginning of such employment. However, Section 8 (b) (2) expressly provides that it is an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee with respect to whom membership in such organization has been denied or termi- nated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquir- ing membership. It is well established, accordingly, that even though a union may have other requirements for membership beside the payment of dues and initiation fees, it cannot lawfully cause the dis- charge of an employee under a union-shop agreement because of his failure to comply with these requirements.' In this case the union-shop contract between the Company and the Union provided that "new employees must pay their initiation fee in full and become members of the Union at the first union meeting fol- lowing the expiration of their probationary period." Under the Union's practice, dues were not payable until after initiation. Beau- champ, when hired on August 13, 1954, authorized a checkoff to cover his initiation fee of $25, and this amount had been paid in full by the time his probationary period ended on September 10. On that day, Cooper, the union steward, told him that he would have to be present at a union meeting on September 14 to be initiated. Beauchamp said that he would not be able to attend for personal reasons, and Cooper said, "I'll have the chief steward here Monday or you'll be out of a job." On the following Tuesday, September 14, Cooper again spoke to Beauchamp about the meeting, and Beauchamp again said he could not and would not be there. Cooper then called in Grevel, the chief stew- ard, who asked Beauchamp his reason for refusing to attend the meet- ing. Beauchamp said it was personal and none of Grevel' s business. ' See Union Starch & Refining Co. v. N. L. R . B., 186 F. 2d 1008 ( C. A. 7), enfg. 87 NLRB 779, cert. denied 342 U. S. 815. There the court, in discussing the contention that, as long as the conditions imposed by a union for the acquisition of membership apply equally to all employees, the union may, pursuant to a union -security agreement , require the dis- charge of any employee who fails to meet any of the conditions the union may prescribe, said : We agree that the Union had the right , under the statute here involved , to prescribe non-discriminatory terms and conditions for acquiring membership in the Union, but we are unable to agree that it may adopt a rule that requires the discharge of an employee for reasons other than the failure of the employee to tender the periodic dues and initiation fees. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grevel, in leaving, said, "I'll have you fired right now." The Union thereupon notified the Company that Beauchamp was not in good standing. Beauchamp did not attend the meeting; the Union so notified the Company; and the Company discharged him. It is true that during Beauchamp's conversations with Cooper and Grevel, he gave no reason for his refusal to attend the initiation meet- ing, aside from saying that it was "personal," and that he made no tender of union dues. However, we regard these circumstances as irrelevant to a determination of the issue before us. There is nothing in the record to suggest that Beauchamp was refusing to be initiated in order to avoid incurring liability for dues, or that the Union so in- terpreted his conduct; the fact that he had already paid his initiation fee in full is persuasive evidence that he was willing to meet any law- ful financial obligations to the Union to retain his job. Furthermore, the union representatives' insistence on Beauchamp's presence at the meeting, Grevel's threat to have him discharged when he refused to attend, and the failure of both Cooper and Grevel to mention dues to him, all convince us that the real reason for their notifying the Company that he was not in good standing, and thus causing his dis- charge, was his refusal to attend the meeting and not his failure to tender dues. As the Union could not lawfully cause his discharge for this reason, we regard it as immaterial that Beauchamp had given no "good" reason for his refusal. Moreover, as the Union's conduct clear- ly indicated that it would not be satisfied with anything but actual initiation, we believe, as the Trial Examiner found, that a tender of dues would have been futile and was therefore unnecessary.2 Accord- ingly, we find, as did the Trial Examiner, that by causing and threat- ening to cause the Company to discriminate against Beauchamp be- cause of his nonmembership in the Union based on some ground other than his failure to tender periodic dues or initiation fees uniformly required as a condition of acquiring or retaining membership, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 107c) of the National Labor Relations Act, the National Labor Relations 2 In the Union Starch case , supra, as the discharged employees had tendered their initia- tion fees and dues, the question of the futility of such a tender did not arise In subse. quent cases , however, the Board has held that a tender of dues is unnecessary if it appears that it would have been futile See, e g, Peerless Tool and Engineering Co, 111 NLRB 853, cited in the Intermedi ate Report. See also The Eclipse Lumber Company, Inc, 95 NLRB 464, enfd. 199 F. 2d 684 ( C A 9) , Westinghouse Electric Company, 96 NLRB 522, enfd. sub nom N. L R. B. v I. A M Local 504, 203 F . 2d 173 (C. A. 9) ; Bloomingdale's, 107 NLRB 191 ; Murphy's Motor Freight, Inc, 113 NLRB 524. In view of our finding that in this case a tender of dues would have been futile, we deem it unnecessary to pass upon the Trial Examiner ' s further finding that such tender was not required because , under the Union's own practice, dues were not payable until after initiation. UNITED BROTHERHOOD OF CARPENTERS, ETC. 521 -Board hereby orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, Millmen's Local 824, AFL-CIO, and its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Causing or attempting to cause Brunswick-Balke-Callender Company, its officers, agents, successors, or assigns, to discriminate against Eugene Beauchamp or any other employee in violation of Sec- tion 8 (a) (3) of the Act, or to discriminate against Eugene Beau- champ or any other employee with respect to whom membership in the Respondent has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. (b) Threatening to cause Brunswick-Balke-Callender Company, its officers, agents, successors, or assigns, to discriminate against any employee in violation of Section 8 (a) (3) of the Act. (c) In any like or related manner restraining or coercing any em- ployee of Brunswick-Balke-Callender Company, its successors and assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 Brunswick - Balke - Callender Company, Muskegon, Michigan, in writing, and serve a copy of the notice upon the Charging Party, that it has no objection to the Company's reinstating Eugene Beauchamp to the position from which he was discharged on Septem- ber 15, 1954, and that it formally requests such reinstatement. (b) Make whole Eugene Beauchamp for any loss of pay he may have suffered by reason of the discrimination against him, in the manner prescribed in the section of the Intermediate Report entitled "The Remedy." (c) Post in conspicuous places in its business office at Muskegon, Michigan, where notices to members are customarily posted, copies of the notice attached to the Intermediate Report marked "Appen- dix." 9 Copies of the notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respond- ent's official representative be posted by it immediately on receipt 8 Said notice is hereby amended by deleting the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order," and by striking "AFL" and "Affiliated with American Federation of Labor" and substituting therefor "AFL-CIO." 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 " 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof, and maintained by it for sixty (60) consecutive days there- after. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Seventh Region signed copies of said notice for posting by the Company, the latter willing, at its plant in Muskegon, Michigan, for sixty (60) consecutive days in places where notices to employees are customarily posted. Copies of the notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representa- tive, be forthwith returned to said Regional Director for such posting. (e) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER MURDOCK, dissenting : I cannot agree with the majority's conclusion that the Respondent Union violated Section 8 (b) (2) and (1) of the Act by notifying the Employer, in accordance with the terms of their existing contract, that Eugene Beauchamp was not a member of the Union in good standing. Briefly, the facts as found by the Trial Examiner, are as follows : Beauchamp was hired by the Employer on August 12, 1954. The con- tract between the Union and the Employer required new employees to pay their initiation fees and become members of the Union 30 days after the date of their employment. Beauchamp had paid his full' initiation fee at the expiration of his 30-day grace period, September 12,1954. As of that date he was required under the contract, as a con- dition of employment, to become a member of the Union. On Sep- tember 10 and 14, respectively, he was told by a union official to appear for initiation at a union meeting on the latter date. On both occasions Beauchamp refused, giving no reason for his refusal except to say that it was "personal," and "none of [your] business." On neither oc- casion did he offer to pay the dues uniformly incurred by members im- mediately following their initiation. On September 14, following Beauchamp's second refusal to appear for initiation and become a union member, the Union notified the Employer that he was not a member in good standing and he was accordingly discharged. On these facts the majority, affirming the Trial Examiner, finds that Beauchamp was, in fact, denied union membership- on some ground other than his failure to tender the periodic dues and initiation fee uniformly required of union members. In reaching this decision the majority holds that Beauchamp's failure to tender his dues, which, under the Union's practice, were payable only after initiation "is ir- relevant to a determination of the issue before us." It seems to me that UNITED BROTHERHOOD OE CARPENTERS, ETC . 523 there is no circumstance in this case which can or should be.more rele- vant. This decision of the majority is based not upon a preponderance of the evidence in the record but upon the absence of evidence to estab- lish beyond question the legality of the Union's motive. I must remind my colleagues that the burden of proof was not on the Respondent Union to prove that Beauchamp had refused to be initiated to avoid the payment of dues. The Act requires that the Board's General Counsel prove affirmatively and by a preponderance of the testimony that the Respondent has engaged in an unfair labor practice. In the instant case such proof should have consisted of facts clearly estab- lishing (1) that Beauchamp had a valid reason to excuse his failure to comply with the terms of a lawful union-security contract, and (2) that he had made a lawful tender of dues or was, at least, prepared and willing to do so. Neither of these facts have been established. On the contrary, whatever evidence there is supports the opposite conclusion. The disturbing effect of the majority's decision-is to force a respond- ent to assume the burden of proof when that burden should be placed clearly and unequivocally on the General Counsel. As the Sixth Circuit Court of Appeals said in the Turner Construction 4 case, re- versing the Board majority and adopting my dissenting opinion: "It is, of course, the function of the Board to draw inferences but they must be based upon evidence and reasonable." I can find neither suf- ficient evidence nor reason to support the majority's inferences in this case. Here, as in the Turner case, the majority relies upon the absence of evidence and broad inferences based upon no more than a scintilla of evidence to establish a violation of the Act. Indeed, the majority finds in this case that Beauchamp was denied membership in the Union, even though the record is clear that the Union implored him to attend an initiation meeting to become a member. Beauchamp, however, refused either to become a member, as required by the contract, or to tender his dues, as required, in lieu of actual membership, by the Board's Union Starch 5 decision. The majority exonerates Beauchamp of all blame for his conduct and holds, rather, that the Union, despite the lawful- ness of its union-security contract, violated Section 8 (b) (2) when it truthfully informed the Employer that Beauchamp had not become a member of the Union in accordance with the terms of the contract. This surprising result is based upon a member of far reaching in- ferences. The majority recites the fact that Beauchamp had paid his initiation fee by checkoff and from such "persuasive evidence" infers that he was perfectly willing and ready to tender his dues. This in- ference is drawn despite the fact that Beauchamp at no time suggested or indicated in any way that he was willing to pay his dues if the Union 4 N. L. R. B. v. Turner Construction Company and International Union of Operating Lngineer8, Local 917, AFL, 227 F. 2d 498 (C. A. 6). 6 Supra. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excused him from attending the initiation meeting. The majority advances the astonishing suggestion that it was not Beauchamp's duty but the duty of the Union to inform him that he had to tender his dues to avoid the consequences of refusing to be initiated into the Union. Thus, the Union's silence as to this matter is taken as evidence that it had, in fact, denied him membership in the Union solely because he did not attend a meeting. The record, however, shows that the Union did no more than to inform the Employer that this employee had not joined the Union as required by the terms of its contract. This state- ment was a truthful, uncontroverted fact. To hold, as the majority does, that the Union is prohibited from telling the truth by Section 8 (b) (2) because it had asked an employee to be initiated into the Union in accordance with the terms of a lawful contract seems to me to be completely contrary to the language and spirit of that section of the Act. The Union Starch decision upon which the majority relies is en- tirely inapposite to the facts of this case. There three discharged employees had tendered both their initiation fees and dues and had in- dicated that they were willing to become union members. Their sole objection related to the Union's additional requirement that they take an oath to the Union. Two of the employees had religious scruples against taking such an oath; the third desired to avoid taking the oath because it might conflict with her membership in another labor organ- ization. The Union refused to permit them to become members with- out an oath and caused them to be discharged for that reason. Cer- tainly, that case can hardly be said to be precedent for a situation where, as here, the employee was practically implored to become a union member, never offered any reason for refusing to do so, and never tendered or indicated that he was willing to tender his dues. On the contrary, Beauchamp told the union representative that his reasons were "personal" and "none of [your] business." I had thought it clear that the Union Starch decision was to be applied as an affirmative de- fense to the failure of an employee to become a union member as re- quired by the terms of an otherwise lawful union-security contract. It now appears that a union cannot rely upon the legality of its con- tract but must go further and prove that the discharged employee did not have a defense under the Union Starch doctrine. To so shift the burden of proof not only seriously prejudices the Respondent Union in this case but serves notice to all respondents that they cannot fully rely upon the provisions of Section 10 (c) of the Act, which requires that the Board base its finding of an unfair labor practice upon "a pre- ponderance of the testimony taken." Inferring that the Union "would not be satisfied with anything but actual initiation," the majority leaps to the further inference that it would have been a futile gesture if Beauchamp had tendered his dues. There is not the slightest evidence in the record, however, to suggest UNITED BROTHERHOOD OF CARPENTERS, ETC. 525 that Beauchamp had any reason to believe that the Union would have refused to accept his dues, if tendered. At no time had the Union ever rejected or suggested to Beauchamp directly or indirectly that it would refuse to accept such a tender. The cases cited by the ma- jority in footnote 2 of its decision have no application to the facts of this case. In every one of those cases the union had made it clear to prospective members that they would not be permitted to join the union unless they first paid fines, assessments, or back dues. Under such circumstances, the Board found that a tender of current dues only would have been rejected unless accompanied by the payment of the additional sum demanded by the union. In the instant case all that was required of Beauchamp was that he be initiated as a union member. Certainly, this request was not itself unlawful. I do not believe it should be used as the sole basis to apply the futility doctrine as to dues. The Trial Examiner's finding that Beauchamp's tender would have been futile derives from the testimony of Union President Klein given in response to leading questions put by the Trial Examiner himself. That testimony, in my opinion, cannot be interpreted as an admission by Klein that the Union would have rejected Beauchamp's tender if made. Rather, it appears to me that Klein's testimony is to the contrary. Asked by the Trial Examiner what his instructions to the Union's financial secretary would have been had Beauchamp ten- dered his dues but refused to attend the meeting, Klein replied : The WITNESS: He [the financial secretary] would have to ac- cept it and then find out what we can do about it later. TRIAL. EXAMINER: What do you mean by that? The WITNESS : Well, I mean you have to comply with the laws. We try to comply with the law. We follow it right along and we don't try to construct the law, that isn't our intentions at all. After further questioning by the Trial Examiner, Klein explained that new members, after initiation, "go to the financial secretary's desk and pay their regular dues and we have never accepted dues from anyone that I know of or never have been asked to assess dues unless they go through that procedure." [Emphasis supplied.] Certainly, this testimony of Klein as to the normal initiation procedure for new members does not constitute an admission that the Union, aware of the requirements of the law, would nevertheless have rejected Beau- champ's tender and thereafter sought his discharge. As Klein said, the Union had never been asked to accept dues without going through the initiation procedure. It would be sheer speculation to conclude how it would have acted in .a situation never before encountered. I can see no valid reason to excuse this employee's failure to perform the very minimal obligations of an employee subject to a lawful union-_ security contract. If Beauchamp desired to take advantage of the 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's Union Starch decision by insisting that the Union, despite its lawful contract, could not'require him to become a union member, he must also, it seems to me, be subject to its limitations. The Union Starch decision placed him under an obligation after the 30th day of his employment to tender an amount of money equal to and in lieu of the initiation fee and dues payable by those employees who did become union members. He failed to do the latter. For these reasons I find that the Respondent Union did not violate Section 8 (b) (2) and (1) in this case and would dismiss the com- plaint in its entirety. MEMBER BEAN took no part in the consideration of the above Deci- sion and Order. INTERMEDIATE REPORT THE ISSUE On September 15, 1954, the Respondent in this case , United Brotherhood of Carpenters and Joiners of America, Millmen's Local 824, AFL-CIO, acting under a union-shop contract, brought about the discharge of Eugene Beauchamp because he was not in good standing with the Union . Since the validity of the union-shop provision is not challenged , the legality or illegality of the Union's action turns on whether Beauchamp's failure to be in good standing with the Union , relied on in causing his discharge , was based on some ground other than failure to tender the requisite dues and initiation fee; and that is the issue here.' FINDINGS OF FACT 1. JURISDICTION There is no question here as to the jurisdiction of the Board . The Employer is. the Brunswick-Balke-Callender Company, a Delaware corporation , operating a plant in Muskegon, Michigan, for the manufacture of bowling and billiard equip- ment. Annually, it purchases over $ 1,000,000 worth of materials of which more than half are received directly from outside and sells over $ 1,000,000 worth of prod- ucts, of which about four-fifths are shipped to points outside the State in interstate commerce. It is found that the Company is engaged in commerce within the mean- ing of the Act and that Respondent 's activities hereafter detailed , taken in connec- tion with the Company 's operations, are intimately and substantially related to com- merce and tend to burden it within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The events culminating in the discharge Beauchamp, hired as a machine operator on August 12, 1954 , authorized the Employer to check off from his wages $25 in 4 weekly installments in payment of his initiation fee in the Union . His payments were completed about the same time as his 30-day probationary period as employee . Under the contract in force, upon completion of the latter, he became obliged to join the Union ; the completion of the former rendered him eligible to do so; and under prevailing practice in the shop, an employee who completed both achieved membership by presenting himself for initiation at the next regular meeting, which in Beauchamp 's case was the one to be, 'The case arises under the procedure of Section 10 of the National Labor Relations- Act (61 Stat 136) : Beauchamp filed a charge with the Acting Regional Director of the Seventh Region , the latter , on behalf of the General Counsel , issued his complaint, to- which Respondent Union filed Its answer ; pursuant to notice, a hearing was held before this Trial Examiner on June 7, 1955 , at Muskegon , Michigan, at which all parties were, permitted full participation Respondent 's counsel presented oral argument and the Gen- eral Counsel submitted a brief, both of which have been duly considered . At the Trial Examiner's direction after close of the hearing, the parties submitted in writing their separate views, here duly considered , on a certain aspect of the remedy . This report is based upon the entire record and the Trial Examiner's observation of the witnesses. UNITED BROTHERHOOD OF CARPENTERS, ETC. 527 held the evening of. Tuesday, September 14. After this, and not before, his first month's dues would have become payable. On the afternoon of Friday, September 10, Henry Cooper, a union steward, told Beauchamp he had to be present at the September 14 meeting to be initiated. Beauchamp said he would not be able to attend for personal reasons, which he could not disclose; pressed further, he said he could not and would not attend. Cooper thereupon told him, "I'll have the chief steward here Monday or you'll be out of a job." 2 On the afternoon of Tuesday, the 14th, Cooper again brought up the subject of the meeting by asking Beauchamp whether he knew the location of the hall. Beauchamp responded, "I do and I told you before I do. I want you to leave me alone. I can't be there and I won't be there." Cooper brought over Nicholas Grevel, the chief steward. When Grevel asked him his reason for refusing to attend, Beauchamp said it was "personal" and "none of [Grevel's] business"; whereupon Grevel walked away, stating, "I'll have you fired right now." 3 Later during the afternoon of the 14th, Grevel and Cooper notified the Company in writing that Beauchamp was not in good standing with the Union. Beauchamp having absented himself from the meeting of the 14th, Grevel and Cooper the next day reported to Nelson, the Company's employment manager, that Beauchamp had failed to present himself for initiation. At the end of the day, Nelson, summoning Beauchamp, informed him that despite satisfaction with his work the Employer decided, upon consultation with the Union, to discharge him. This terminated Beauchamp's position as a machine operator.4 B. Appraisal and conclusion As found, Beauchamp knew of the purpose of the meeting; contrary to his protes- tation of ignorance at the hearing in his charge of November 24, 1954, he recited that he was told this was to be a "union initiation." In fact, it would seem quite plain from the testimony and the circumstances as a whole that what underlay his refusal to attend was his aversion to the purpose. From his secretiveness concerning his "personal" reason and his irrascibility when questioned about it, the Union under- stood his attitude to be that of an outright refusal. Had it been otherwise, someone would have suggested he present himself for initiation at another meeting-Beau- champ if he had been interested, the Union if it had thought he would be.5 a Beauchamp denied Cooper's testimony that the latter told him the purpose of the meet- ing and Cooper denied Beauchamp's testimony that he told Beauchamp he would be "out of a job." The record in the aggregate supports Cooper on the first and Beauchamp on the second ; each is credited accordingly 3 This last, testified to by Beauchamp, was denied by Cooper and Grevel. Since the lat- ter followed up the encounter by undertaking to have Beauchamp discharged, Beauchamp's testimony on that score is credited. Beauchamp also testified, and Cooper and Grevel denied, that immediately before this last, Beauchamp reached into his pocket and said to Grevel, "If there is any money to be paid, I will pay you right now." Since, as I dater find, such a proffer was neither required at the time nor is it relevant to the controversy, I do not, as I need not, make a specific finding concerning it. Were it otherwise, I would be constrained to take account of the doubtworthy timber of Beauchamp's testimony on that score. While I have no question but that Beauchamp would have responded on the instant to any suggestion that dues were required, they were not then required, and no one else having mentioned the subject, I am not persuaded that Beauchamp introduced it ; the charge signed and filed by Beauchamp on November 24, 1954, which is replete with detail concerning every incident and conversation, including those with the steward and chief steward, contains no mention of the proffer. The interjection now of the matter of dues by Beauchamp and, as appears later, also by the Union in support of its subsequent action would seem to reflect a recollection moulded by refinements of insight of a later vintage by which neither was encumbered during the event. 4 Beauchamp, on October 18, 1954, returned to work in some other capacity after the Union, on October 6, sent the Company, with a copy to Beauchamp, a letter declaring that it "holds no objection to the hiring of Eugene Beauchamp at your factory." This is dis- cussed later in connection with "The Remedy." It further appears that Beauchamp was never returned his $25 by the Union; I do not understand the General Counsel to claim this to be within the issues ; the complaint is silent about it, and in contradistinction to the discharge, this would seem to be a subject of private controversy flowing from an incident of internal union administration. 5 Cooper, when asked why another meeting date was not suggested, replied, "I don't think he wanted to come" , Grevel, to similar effect, testified he took Beauchamp's action as a refusal to be initiated. 528 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD The two would seem to have understood each other perfectly : Beauchamp would have no part of attending a meeting to become initiated and the Union would have no part of him , if that was his attitude. I am therefore unable to follow the Union's present attempt to attribute its action, partially- at least, to Beauchamp's failure to tender dues. It is clear to me from the testimony of the union officials that the: Union's action stemmed from its repugnance to Beauchamp 's refusal to present him- self for initiation-the first such refusal on the part of any employee, according to it, in nearly 50 years of the Union 's contractual relations with the Company. The circumstances compel the conclusion , which Union President Klein, in effect, ad- mitted after considerable wrestling with the question , that had Beauchamp tendered dues without being initiated, the Union would have rejected the tender . The Union, averse to having within its ranks a person who refused to submit to initiation, was privileged for that or any other reason to bar such person from its membership roll; 6 but it was quite another thing for that reason to have him dislodged from the com- pany payroll. A union's power legally to do the latter, even under a contract which validly requires union membership , arises only where the membership has been de- nied or terminated, in the language of Section 8 (b) (2), because of "failure to tender the periodic dues and initiation fees uniformly required as a condition of ac- quiring or retaining membership." The statute explicitly excludes any "other" ground; and under controlling authority , this stricture applies even when the "other" ground involves a step which in union tradition is identified with and symbolizes the assumption of the obligation of membership-such as the taking of the oath.? Re- fusal to submit to initiation is on no different plane; union counsel so concedes, but insists the doctrine above stated applies only where the employee has made an actual tender. Not so, however, where it amply appears , as it does here, that a tender of dues prior to actual initiation would have been rejected . A tender which is futile in fact is superfluous in law.8 Independently, failure to tender dues cannot help the Union here, since under its own practice the initial dues were not payable until after membership was attained, and, hence, tender thereof was not "required as a' condi- tion of acquiring . . . membership." The Union is thus in no position to attribute Beauchamp's failure to achieve membership to his being in default of a prerequisite therefor which did not exist . Nor are we faced with the problem of what the effect would be if an employee's purpose in refusing to be initiated is to defer indefinitely the due date for the payment of his initial dues-not here, at least, where Beauchamp had without demurrer fully paid the initiation fee, the only financial requirement up to that point, and where the Union made no overtures or representations to Beau- champ on the score of any other monetary obligation . I accordingly find and con- clude that the denial of membership on which the Union relied in causing the Com- pany to discharge Beauchamp was on some ground other than failure to tender the periodic dues and initiation fee; the discharge was thus a discrimination against Beauchamp in violation of Section 8 (a) (3) of the Act; and the Union's conduct in bringing it about was a violation of Section 8 (b) (2) of the Act. Thereby , as well as by the prior threats of Cooper and Grevel , the Union interfered with and re- strained Beauchamp in the exercise of his guaranteed rights under the statute, in violation of Section 8 (b) (1) (A ) of the Act. III. THE REMEDY The finding that the Union unlawfully threatened and caused the discharge of Beauchamp requires that it be enjoined from such conduct in the future, and that it be directed to take affirmative remedial measures to redress the injury done. In connection with the latter , there is the question of whether the Union's letter of October 6, 1954, was an adequate restorative measure having the effect of tolling its back-pay obligation. The letter, as previously noted (footnote 4), advised the Company that the Union "holds no objection to the hiring of Eugene Beauchamp at your factory." Respondent urges it was adequate and the General Counsel urges it was not. Respondent contends that "a labor organization which causes an em- ployee's discharge is required , under the law, only to remove itself as an obstacle to the individual's employment, and is not obligated to procure or take affirmative action to procure his employment ." The second part of Respondent 's assertion is vulnerable under the Board's decision in Roadway Express, Inc., 108 NLRB 874, 9 American Newspaper Publishers Association v N. L. R. B , et al., 193 F. 2d 782, 796-7 (C A. 7). 4 Union Starch d Refining Co . v. N. L. R. B., 186 F. 2d 1008 ( C. A 7), cert. denied 342 'U S 815. •'8 Peerless Tool and Engineering Co., 111 NLRB 853. UNITED BROTHERHOOD OF CARPENTERS, ETC. . 529 which prescribes that the notification contains not only a withdrawal of the Union's objection to but an explicit request for the restoration of the employe to his job. Giv- ing Respondent the benefit of the fact that the latter requirement has not been con- sistently invoked ,9 and confining our attention to the first part of its assertion, it is accurate only if substituted for the word "employment" is the word "reinstatement." The very case-relied on by Respondent makes it clear that the withdrawal of objection required in the Union's notification must be "to the reinstatement," not mere employment of the discriminatee.'o Respondent's notification of its acquiescence in the "hiring" of Beauchamp was an implied indication that so far as it was con- cerned Beauchamp 's loss of status occasioned by his discharge was there to stay, and that Respondent would place no barrier merely to Beauchamp 's being taken on as a new employee. This, for the reason stated, was hardly sufficient." In these circumstances, a union is normally directed to send the employer and the discharged employee the proper notification and make whole the discharged employee for any loss of pay occasioned by the discrimination against him from the date it occurred to a date 5 days after the union sends the notification or to the date on which the employer so reinstates the employee, whichever occurs earlier.'2 However, in response to my specific request from the parties for their views concern- ing the scope of the remedy in the light of the Union 's October 6 letter, the counsel for the General Counsel states: It is the position of counsel for the General Counsel that the Union 's letter of October 6, 1954, was inadequate for the purpose of terminating its liability for back pay, and that the back pay continued to run until October 18 , 1954, when Beauchamp was hired by the Company for a new job. I am not certain whether this is intended to constitute a waiver of the normal remedy. In the absence of a basis therefor in the record , I do not see how it can in any event be dispensed with. It may be that there are factors not appearing of record which may require a corresponding adjustment of the remedy prescribed . But these matters are appropriately considered at the stage of compliance . Accordingly, it will be recommended that the Respondent take the requisite remedial steps with the prescription in Roadway Express as the guide : the notification to be served by it on the Company and Beauchamp should be to the effect that Respondent has no ob- jection to the Company's reinstating Beauchamp to the position he occupied at the time of his discharge on September 15, 1954, and requests that it do so. The loss of pay, for which the Union is to reimburse Beauchamp ,13 shall be computed on the basis of the policies and methods set out in F. W. Woolworth Company, 90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440. As to the scope of the negative injunction : the Union's action stemmed from a mistaken view of its rights under the union-shop provision of the contract. That, of course, does not excuse it from the consequences of its conduct ; but the record affords no indication of a disposition on the ' Union's part to or a basis for appre- hending that the Union will engage in any other type of statutory transgression. I 'conclude and find that the purposes and policies of the Act will thus be fulfilled by enjoining the Union from engaging in "like or related" conduct in the future. On the basis of the whole record, and the findings above, I hereby make the following: CONCLUSIONS OF LAW 1. By causing the Company to discriminate against Beauchamp because of non- membership based on some ground other than his failure to tender periodic dues or 9 See e. g, International Association of Bridge, Structural, etc. (Buie Building Mate- rials Company ), 112 NLRB 1059 10 Acme Mattress Co., 91 NLRB 1010, enfd 192 F. 2d 524 (C. A. 7). 11 Additionally , there is this consideration • Beauchamp testified that after his dis- charge, he "asked [the Company] if [he] couldn't work in another local, in another de- partment." If I am correct in interpreting this as an indication that the Company had a department not under the jurisdiction of this Union , with jobs whose tenure was totally unaffected by the contract , the letter is bereft of all therapeutic force 12 Roadway Express, Inc., supra, at 885; Pinkerton's National Detective Agency, Pic , 90 NLRB 205. 13 Running, as previously indicated , from date of discharge to a date 5 days after the Respondent serves the notification as prescribed or to the date on which the Company reinstates Beauchamp to his former position , whichever precedes 390609-56-vol. 115-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initiation fees uniformly required as a condition of acquiring or retaining member- ship, and by threatening to cause the Company so to discriminate, the Respondent Union, a labor organization, has engaged and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES OF BRUNSWICK-BALKE-CALLENDER COMPANY AND TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER- ICA, MILLMEN's LOCAL 824, AFL Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the Labor Management Rela- tions Act, we hereby give notice that: WE WILL NOT cause or attempt or threaten to cause Brunswick -Balke- Callender Company to discharge or otherwise discriminate against any em- ployee in respect to whom membership in our Union has been denied or termi- nated on some basis other than failure to tender the periodic dues and initiation fees uniformly required as a condition for acquiring or retaining membership; nor will we cause or attempt to cause such Company to discharge or otherwise discriminate against any employee in violation of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce employees of the above-named Company in the exercise of rights guaranteed in Section 7 of the Act. WE WILL make Eugene Beauchamp whole for any loss of pay resulting from the discrimination against him. WE WILL notify the Brunswick- Balke-Callender Company and Eugene Beauchamp , in writing, that we have no objection to its reinstating him to the position he occupied at the time of his discharge on September 15, 1954, and that we request that the Company do so. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, MILLMEN'S LOCAL 824, 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. Westinghouse Electric Corporation and Arthur L. Herman and B. George Budd, Petitioners and Local 456, International Union of Electrical, Radio & Machine Workers, AFL-CIO.' Case No. 2-RD-296. February 23,1956 DECISION ON APPEAL On September 30, 1955, the Petitioners filed a petition with the Re- gional Director for the Second Region, seeking to decertify the Union as the collective-bargaining representative of approximately 22 pro- fessional employees currently represented by the Union as part of a 1 The AFL and CIO having merged since the initiation of this proceeding, we are amend- ing the designation of the Union accordingly. 115 NLRB No. 87.