H. Muehlstein & Co., Inc

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The Respondent has not engaged in unfair labor practices by according its nonstriking employees and replacements during the period of the December 1 to 8, 1953, strike, superseniority over its employees who participated in the strike. 8. The Respondent has not engaged in unfair labor practices by instituting and discriminatorily applying a system of aptitude tests. [Recommendations omitted from publication.] H. Muehlstein & Co., Inc. and Emmett A. Hunter and Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectifying Wine and Allied Workers' International Union of America, AFL-CIO. Case No. 13-CA-9251. June 21,1957 DECISION AND ORDER On December 11, 1956, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that 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 Inter- mediate Report attached hereto. Thereafter, Respondent filed ex- ceptions to the Intermediate Report together with a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 Inter- mediate Report, Respondent's exceptions and brief,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner with certain modifications 2 1 These adequately present Respondent's position . Its request for oral argument is therefore denied. 2 The Trial Examiner found that "in delegating to the Union final authority in the determination of whether an employee is a member in good standing,' and that the Union could effectuate his dismissal when he ceased to maintain that status ," Respondent vio- lated the Act. As no exceptions have been taken to this finding, we adopt it pro forma. Similarly, no exceptions have been taken to the Trial Examiner's finding that , because the parties did not attempt to enforce the unlawful security provisions in their contract, Respondent did not violate Section 8 (a) (3) by the inclusion of such unlawful clauses in its contract with the Union. We also adopt this finding pro forma without neces- sarily adopting the Trial Examiner's rationale . See Carty Heating Corporation, 117 NLRB 1417; County Electric Co., Inc., 116 NLRB 1080, 1081-1082 ; and Port Chester Electrical Products Corporation, 97 NLRB 354 , 355-356 , where we have held that dis- criminatory contractual provisions are also violative of Section 8 (a) (3) of the Act whether or not they are enforced , unless there is an actual agreement between the parties not to enforce them. Although not reflected in the Intermediate Report the contract accords employees. the requisite 30-day grace period in which to join the Union. 118 NLRB No. 34. H. MUEHLSTEIN & CO., INC. 269 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 Respondent H. Muehlstein & Co., Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectifying Wine and Allied Workers' International Union of America, AFL-CIO, or in any other labor organization of its employees by discharging or re- fusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Agreeing to, continuing in force, or giving effect to, illegal union-security provisions in any collective-bargaining agreement with Rubber and Plastic Workers Union, Local No. 82, affiliated with Dis- tillery, Rectifying Wine and Allied Workers' International Union of America, AFL-CIO. (c) In.any other manner, interfering with, restraining or coercing employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their- own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activ- ities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section'8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Einniett A. Hunter immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to the seniority or other rights and privileges previously enjoyed by him. (b) Make whole Emmett A. Hunter in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay he may have suffered by reason of Respondent's discrimination against him. . (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to determine the :amount of back pay . due under the terms of this order. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post in conspicuous places at its place of business in Chicago, Illinois, in all locations where notices to employees are customarily posted, copies of the notice attached hereto and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respond- ent's official representative, be posted immediately upon receipt there- of, and be maintained by Respondent for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order of the steps taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that by maintaining in effect the illegal union-security provisions in its collective-bargaining agreement with the Union Respondent violated Section 8 (a) (3) of the Act. 3In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : EVE WILL NOT discourage membership in Rubber and Plastic Workers Union, Local 82, affiliated with Distillery, Rectifying Wine and Allied Workers' International Union of America, AFL-- CIO, or any other labor organization of our employees by dis- charging or refusing to reinstate any of our employees, or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT agree to, continue in force, or give effect to illegal union-security provisions in any collective-bargaining agreement with Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectifying Wine and Allied Workers' Interna- tional Union of America, AFL-CIO. . WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organiza- tion, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from H. MUEHLSTEIN & CO., INC. 271 any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL, offer to Emmett A. Hunter immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges pre- viously elijoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. H. MUEHLSTEIN & CO., INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed and served the General Counsel of the National Labor Relations Board,' pursuant to Section 10 (b) of the Labor-Management Relations Act, 61 Stat. 136 (herein called the Act), issued a complaint dated August 16, 1956, against H. Muehlstein & Co., Inc., herein called the Respondent or the Company and Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectify- ing Wine and Allied Workers' International Union of America, AFL-CIO, party to the contract, herein called the Union. In substance the complaint alleges that the Respondent by discharging an employee because he engaged in concerted activ- ities and by reason of his union membership thereby violated Section 8 (a) (3) and (1 ) of the Act. The complaint further alleges that the Respondent by executing and maintaining in effect an agreement with the Union containing an invalid union- security clause the Respondent thereby violated Section 8 (a) (1) and (3) of the Act.2 The Respondent filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice to all parties , a hearing was held before the Trial Examiner in. Chicago, Illinois, on October 23, 1956. All the parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross -examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. At the conclusion of the case counsel for the Respondent moved to dismiss the complaint for lack of proof, which motion was taken under advisement . For the reasons appearing below, the motion is now denied . The General Counsel filed a brief which has been considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS The complaint alleges that the Respondent , a New York corporation , maintains manufacturing plants in Chicago, New York, Akron , Ohio; Boston, Massachusetts, Los Angeles , California, and Memphis, Tennessee , where it is engaged in the manufacture of plastic articles and the reprocessing of thermoplastic materials. '.The General Counsel and the staff attorneys appearing for him at the hearing are re- ferred to as the General Counsel , and the National Labor Relations Board as the Board: 2 The Trial Examiner, without objection , granted the General Counsel 's motion to amend his complaint to include a violation of Section 8 (a) (3) of the Act. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year 1955 the Respondent's purchases of materials from outside the State of Illinois amounted to more than $500,000, and sales of its products to out-of- State customers were valued in excess of $50,000. In its answer, and at the hearing, the Respondent did not contest the allegations concerning its operations generally and conceded that it is engaged in commerce within the meaning of the Act. How- ever, the Respondent pointed out that it maintained only offices , not manufacturing plants, in cities other than Chicago and that while it does not manufacture finished plastic articles it does reprocess plastic materials for other manufacturers . The Trial Examiner finds that the Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharge of Emmett A. Hunter It is undisputed that Hunter was first employed by the Company on February 14, 1956, and was discharged on May 24, 1956. The parties also stipulated that the Company and the Union executed a collective-bargaining agreement effective from December 6, 1955, to December 5, 1957, which provides, inter alia, for grievance and arbitration procedures, and that it is now, and at all times material has been, in full force and effect.3 The issue concerning this phase of the case is whether Hunter was discharged for filing a grievance under the contract, as asserted by the General Counsel, or whether he was discharged for refusing to obey an order of his supervisor concerning work assignments, as claimed by the Company. Throughout the period in question, Alan Heath was, and is, plant manager; Ralph Kruzic was Hunter's foreman, and Rufus Robinson the union steward. Hunter stated he was first employed as a laborer or material handler on the dock at $1.50 per hour. It is not clear how long Hunter remained on the dock, but in any event, in line with company procedure, he bid upon and received a job as saw operator in the grinding department, which paid $1.70 per hour. Hunter stayed on this job only a few weeks when he was "bumped" by another man and returned to the dock at the existing rate of $1.60 an hour. Hunter made no complaint to the Company or the Union but reported for work on the dock. After being on the job a few days Hunter met Heath in the plant and asked if he could not bump someone or be placed in the sorting department and Heath promised to look into the matter with Robinson. Hunter fixed the conversation as taking place from 2 to 4 weeks prior to this discharge. As a result of this meeting Hunter was assigned to the sorting department as material handler, at the same pay rate, and remained there for about 2 weeks when he was terminated. Robinson said that Hunter did not complain when he was bumped from the saw operator job to the dock and that Hunter spoke to Heath and himself about bumping a man or getting a job, at his present wage, in the sorting department. Hunter worked in the sorting department under Kruzic and his duties consisted of keeping the employees supplied with material and when the operation was com- pleted to remove it to the scale and weigh it, and to keep the area clean. On the afternoon of May 23, Kruzic told Hunter to work back and forth between the grinding and sorting departments 4 (doing substantially the same type of work) and Hunter complained that that was a two-man job and that Kruzic should have a man in the grinding department and let him stay in the sorting department because there was sufficient work for him to do. Kruzic told Hunter to do the work which be did, as instructed, for the remainder of his shift. The same day, Hunter reported to Robinson that he did not think he was being treated fairly and that he should Look into the matter. Hunter could not recall Robinson's answer to.his complaint. The following morning Hunter reported for work at 8 o'clock in the sorting depart- ment and sometime before 10 o'clock Kruzic, told him to work between the depart- ments, as he had previously, and Hunter said he did not believe that he was being treated fairly and should not be required to work between the departments. Again, 8 The agreement also contains an automatic renewal clause for 1 year, subject to termi- nation or modification by either party on 60-day written notice prior to its expiration. s The departments are adjacent to each other and separated by a long machine. Kruzic to foreman of both departments. H. MUEHLSTEIN & CO., INC. 273 Kruzic told him to do the work, which he did. At the 10 o'clock coffee break, Hunter explained the situation to Robinson and stated he wished to file a grievance with him. Robinson then gave Hunter the grievance pad or form on which Hunter. wrote out his grievance to the effect that he "has been repeated[ly] asked to handle material in the Grinding Dept. while there was work to be done in his regular assigned Dept." and, as reason for the foreman not adjusting the complaint he stated, "We do not believe in a man being run from Dept. to Dept. unless his job is eliminated." Hunter gave the grievance to Robinson and since he had failed to sign the form, Robinson returned later to obtain his signature thereon. Hunter went to work after the break and continued to work, in accordance with his instructions, until about 2:30 that afternoon when he left the plant to attend to personal business, having previously been granted permission to leave by Kruzic. Robinson testified that on the morning of May 24, Hunter complained that it was not right to require him to work in two departments and Robinson told him to do the work and if things got worse he would straighten it out. About half an hour later, at the coffee break, Hunter again complained concerning his work assignment and asked for the grievance pad, which Robinson gave to him. Hunter then wrote out his grievance and presented the pad to Robinson, unsigned, after the coffee break. Robinson, in turn, gave the grievance pad to Kruzic who, sometime later, signed the grievance and returned the pad to him. Robinson was called to the office and on his way there he met Heath and asked him if he had seen the grievance. Heath replied that he had and declared: "Well, it looks like Hunter isn't satisfied. . . . If he isn't satisfied the best thing for him to do is leave." Heath then left. Follow- ing the conversation Robinson had Hunter sign the grievance and gave Kruzic a copy thereof. Apparently, Robinson also gave a copy to Hunter. Robinson, who had been steward for about 31/z years, stated this was the first written grievance that had been filed with him. The next morning, May 25, when Hunter reported for work his timecard was not in the rack, so he went to the office to inquire about it and he was informed by "Vince," personnel manager, that he had been discharged on the previous day, and then handed him two paychecks. Hunter thereupon reported his discharge to Robinson who stated he would call LeRoy Beth, the union representative, at his office. While Hunter was waiting to hear from Robinson, at or near the scale, Heath approached him and told him to leave the premises. When Hunter explained his reason for being in the area Heath instructed him to wait in the washroom or locker room, which he did. Later that morning Robinson, as Hunter recalled, told him they were going to have a meeting and he would inform him of the outcome thereof. Apparently, Hunter then left the plant. Hunter could not remember whether Robinson instructed him to go to the union office, he conceded this was a possibility, and he believed he did go to the office that day, Friday, or the following Monday. He admitted that he did go to the Regional Office of the Board the same day and file the instant charge. Hunter stated that at his first meeting with Beth, and perhaps his assistant Edward O'Neal (the exact date is not stated), he was told that if he would make an apology to the Company, the Union would try to get him back to work. Hunter said he would apologize if he had caused any disunity between the Union and the Company. Hunter stated there was some men- tion of his having sworn at Heath, but he denied that he had ever done so. Heath made several visits to the union office but has never been reinstated to his job. Robinson said Hunter informed him his timecard was missing and, after going to the office, he came back and stated he had been discharged. Robinson said he would telephone Beth and for Hunter to wait until he had completed the call. About an hour later, Robinson, after talking to Beth, told Hunter that Beth would call Heath and have him put back to work. Hunter then"changed from street to working clothes and went into his department. About that time Heath asked Robinson if he had talked to Beth and when he answered he had, Heath told Robinson to call him again. Robinson thereupon called Beth who informed him that Heath said Hunter had cursed him and he refused his (Beth's) request to put him back to work. Robinson reported this conversation to Hunter and suggested that he see Beth. At Hunter's request Robinson got Beth on the telephone and then left. He did not see Hunter again that day. Heath testified that he directed the discharge of Hunter for the sole reason that he refused to obey the orders of Foreman Kruzic on two occasions. This matter was initially brought to Heath's attention on May 23, when Kruzic advised him that Hunter had failed to perform the job assigned him in that he refused to clean up after the woman sorter. Heath told Kruzic that Hunter had to do the work or be discharged. About 11 o'clock the next morning Kruzic told Heath that Hunter 45055.1-58--vol. 118-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "was filing a grievance with the steward" and inquired as to "what to do with the grievance that he was supposed to sign ." Heath asked the nature of the grievance and Kruzic replied-that Hunter had again refused to work "in the department behind the woman." Heath did not state what, if any, instructions or suggestions he gave to Kruzic upon receiving the foregoing information . About 10 minutes after this conversation Kruzic returned and showed Heath the above-mentioned written griev- ance. Around 3 o'clock that day Heath decided to inform Hunter he had been discharged but he was unable to do so because Kruzic had granted Hunter per- mission to leave the plant at 2:30 that afternoon. Heath directed that Hunter's timecard be removed from the rack in order to prevent his starting work the next day. The following morning Heath met Hunter on the dock near the scale and told him he had been discharged because of his refusal to perform work assignments on two occasions. Heath said Hunter called him an s. o. b. and. Heath replied that the use of such language would be cause for dismissal , in addition to the reasons already stated . Heath called Beth and asked if he was coming to the plant to see Hunter and Beth said to have Hunter come to the union office. Heath gave the message to Hunter who then left the plant . Heath claimed that Benjamin Kelly was present, about 3 or 4 feet distant, while he and Hunter were talking. Kruzic, who quit his job in September 1956, said that Hunter was working in the sorting department and on May 23 he told him to work in the grinding depart- ment. Hunter said something to the effect that the grinding department was a higher paying department and he believed he should be paid more money for working there. Kruzic could not recall what, if any , reply he made to Hunter, but he admitted that Hunter performed the duties assigned to him that day. On May 24 Kruzic again instructed Hunter to work in the grinding department on what he believed was a cleanup job, but he could not remember whether the assignment was given in the morning, nor could he remember what he told Hunter, or if Hunter said anything at all to him. When asked by the General Counsel if Hunter did the work he was directed to do on this occasion Kruzic answered, "As far as I can remember , yes, but I couldn't say for sure." The General Counsel then produced a written statement which Kruzic stated was prepared by a field examiner of the Board on the basis of an interview with him within 1 or 2 weeks after the occurrence of above events and that he signed the statement, which the Trial Examiner received in evidence . After reading his statement at the hearing, Kruzic testified that he still could not remember whether Hunter performed his work assignment on May 24. In this respect the statement reads: I assigned him again to work in the grinding department , and again he com- plained that he didn't want to do it; but nevertheless he did do the work I assigned to him. Again, when questioned if he reported to Heath that Hunter did not do the work assigned on the above dates Kruzic responded , "I don't believe I can recall offhand. I don't know if it was-I can't recall. I can't recall for sure." When further ques- tioned as to whether Heath told him that Hunter was to be fired if he refused to per- form the work on the second day Kruzic said , "No, I don't remember that." Kruzic admitted that on May 24, he could not recall whether in the morning or afternoon, Hunter or Robinson presented a written grievance to him (the first he had ever re- ceived ) which he gave to Heath, who read it and instructed him to sign it. Kruzic then returned at least one copy to Robinson. In performing the duties assigned to Hunter on the dates in question , Kruzic could not state whether he was working exclusively in the grinding department or the sort- ing department, in fact "its hard to say exactly where he was working." He con- cluded by stating Hunter was assigned "into the grinding department area to do work actually connected with the sorting department ." Kruzic was not certain when he first learned of Hunter's discharge, it was either the afternoon of May 24 or the following morning, and he did not know when Hunter's timecard was removed from the rack. Kelly, employed as scale operator , observed Heath and Hunter talking on the morning of May 25, but he did not overhear their conversation. He further stated that on the following Tuesday, Heath, Kruzic, Beth, Hunter, employee Charles Guise, and himself held a meeting at the plant office for the purpose of discussing Hunter's discharge . In the course of the meeting Guise asked Heath the reason for Hunter's dismissal and he replied that Hunter used abusive language and was complaining. Counsel stipulated that if Guise was called as a witness he would testify to the same effect as Kelly concerning his conversation with Heath at the above meeting. H. MUEHLSTEIN & CO., INC. 275 Concluding Findings It is undisputed, and the Trial Examiner finds, that on May 23 Hunter was instructed by Kruzic to perform certain tasks in the grinding department. It is also clear that although Hunter complained to Kruzic regarding the fairness of the assignment, be- cause it required him to work in two departments , nevertheless he carried out his work instructions and these facts are substantiated by Kruzic's testimony. The trial Examiner further finds that on May 24, sometime prior to 10 o'clock, Kruzic directed Hunter to work in the same manner as the day previous and, again , he complained but performed the tasks as directed. Kruzic did not challenge Hunter's assertion con- cerning job performance and, indeed , his best recollection, although not with absolute certainty, was that Hunter did do the work as directed . Moreover, in his signed state- ment given to a representative of the Board shortly after the act occurred, which statement was neither questioned nor repudiated at the hearing, Kruzic unqualifiedly declared that Hunter performed the work assigned to him on that date. The Trial Examiner so finds. The Respondent concedes that the sole reason for Hunter's discharge was his re- fusal to carry out his work assignments on the above dates. In support of this contention Heath testified that Kruzic reported such conduct on the part of Hunter on May 23 and he thereupon instructed Kruzic that Hunter must do the work or be dis- charged. Accordingly, the following morning when Kruzic advised Heath that Hunter was filing a grievance on his job assignment , and that he had refused to per- form the work, Heath, apparently decided to discharge him. However, Heath took no steps whatever toward having Hunter dismissed at that time and it was not until later in the afternoon, after the grievance had been filed, that he attempted to locate Hunter in order to advise him of his dismissal. As Hunter was on authorized leave that afternoon the discharge was effectuated the next morning. Heath, of course, had no personal knowledge as to whether or not Hunter per- formed his work and specifically stated that he relied upon reports from Kruzic, Hunter's immediate supervisor . Kruzic's testimony not only fails to corroborate Heath's assertion, but, on the contrary, squarely contradicts and repudiates his testimony that Kruzic advised him Hunter had refused to perform the work as- signed to him. It is simply inconceivable that Kruzic, knowing Hunter had carried out his orders, would deliberately and falsely inform Heath that he had done other- wise. Although Kruzic's testimony may be vague in certain respects, such as the time of the filing of the grievance, it is unmistakably clear on the foregoing crucial points or phases. The Trial Examiner from close observation of Kruzic is con- vinced that he would not resort to such tactics and, therefore, rejects Heath's version of the occurrences, so, on the basis of the credible testimony of Kruzic and Hunter, finds that Hunter fully carried out his work assignments and that Kruzic did not advise Heath to the contrary. It is undisputed that Hunter filed a grievance with Robinson shortly after the 10 o'clock coffee break on May 24. The Trial Examiner further finds , on the basis of the credible and undenied testimony of Robinson , that Robinson presented the grievance to Kruzic and shortly thereafter while on his way to the office , pursuant to Heath's call, he met Heath , who remarked : "Well, it looks like Hunter isn't satis- fied. . . . If he isn't satisfied the best thing for him to do is leave." In view of the foregoing findings the Trial Examiner has no difficulty in reaching the conclusion that Hunter was dismissed because he filed the above-mentioned grievance and the Respondent's contention that its action was prompted by refusals to obey instruc- tions is nothing more than a pretext to eliminate Hunter from its employ because he protested the manner in which he was being treated . The privilege of an em- ployee to present a grievance to his employer is an inherent right guaranteed him under Section 7 of the Act and in exercising that privilege Hunter was plainly engag- ing in a form of protected activities within the meaning thereof . By discharging Hunter for filing a grievance , and certainly there was merit to his grievance, the Trial Examiner concludes and finds that the Respondent thereby violated Section a (a) (3) and (1) of the Act. (N. L. R. B. v. Hymie Schwartz, 146 F. 2d 773 (C. A. 5); N. L. R. B. v. Smith Victory Corporation, 190 F. 2d 56 (C. A. 2); N. L. R. B. v. Pacific Mills, 207 F. 2d 905 (C. A. 4); Salt River Valley Water Users' Association v. 'N. L. R. B., 206 F. 2d 325, 328 (C. A. 9); N. L. R. B. v. East Texas Steel Castings Co., Inc., 211 F. 2d 813, 819-820 (C. A. 5); Nu-Car Carriers, Inc., 88 NLRB 75, enforced 189 F. 2d 756 (C. A. 3).) Heath related that on the morning of May 25 , he advised Hunter of his discharge, whereupon Hunter cursed him. Hunter denied the accusation, The alleged cursing is not advanced as a reason for Hunter 's discharge, for he had already been ter- minated when the remark is supposed to have been made. Seemingly , Heath sought 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to create the impression that Kelly was present when the remark was uttered, but Kelly merely stated that he saw the two men talking and did not hear any of their conversation. Having found Heath to be unreliable and untruthful in other im- portant and closely related matters concerning Hunter's discharge, the Trial Examiner, in the absence of any corroboration, likewise rejects his testimony in this instance and accepts and credits Hunter's denial that he cursed Heath. The Trial Examiner entertains no doubt that when Beth called Heath in regard to the discharge, he, Heath, complained Hunter had cursed him and, according to Robinson, the Union seemingly did not question his accusation, although Hunter denied the cursing to Beth, and for that reason did not seriously urge his reinstatement or complete the processing of his grievance. The Trial Examiner attaches no significance to Heath's complaint to Beth and considers this accusation in the same category as his claim that Kruzic reported Hunter had refused to obey work instructions. B. The legality of the union-shop clause in the agreement As appears above the parties stipulated that the Company and the Union executed a collective-bargaining agreement effective from December 6, 1955, to December 5, 1957, which was in force as of the date of the hearing. The agreement provides: Article II Membership 2. All employees subject to the terms and provisions of this agreement shall be required to pay the initiation fee, periodic dues and assessments established by the Union as a condition of good standing membership. 3. The Union shall be the sole judge of the good standing of its members and any employee covered by this agreement who shall hereafter cease to be a member in good standing shall be immediately discharged upon written notice from the Union to the Employer. The General Counsel contends that the foregoing provisions are violative of Section 8 (a) (1) and (3) of the Act. It is well established that an agreement providing for the payment of union assess- ments, in addition to initiation fees and dues, goes beyond the permissive scope of Section 8 (a) (3) and is therefore invalid. (Convair, a Division of General Dynamics Corp., 111 NLRB 1055, 1057.) Again, in delegating to the Union final authority in the determination of whether an employee is a member in "good standing," and that the Union could effectuate his dismissal when he ceased to maintain that status is, likewise, in violation of the Act. (Jandel Furs, 100 NLRB 1390; Pacific Inter- mountain Express Company, 107 NLRB 837, 844.) By retaining the provisions in the contract the Company thereby violated Section 8 (a) (1) of the Act. However, as the parties stipulated that neither the Union nor the Company ever attempted to enforce the unlawful provisions, the Trial Examiner finds that under the circum- stances the Company did not engage in conduct in violation of Section 8 (a) (3) of the Act. (Jandel and Convair cases, supra.) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in connection with the operations of the Respondent have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take the following affirmative action designed to effectuate the policies of the Act:' (1) Offer to Emmett A. Hunter immediate and full reinstatement to his former or substantially equivalent position,5 without prejudice to his seniority or other rights and privileges; (2) make whole Emmett A. Hunter for any loss of pay he may have suffered by reason of the Respondent's unlawful discharge, by payment to him of a sum of money equal to the amount he would normally have earned as wages, from the date of discharge to the date of the Respondent's offer of reinstatement, less his net The Chase National Sank of the City of New York, San Juan, Puerto Rico, Branch, 65) NLRB G27. SEARS ROEBUCK AND CO. 277 earnings during said period; 6 (3) the Respondent shall, upon request, make available to the Board payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in accordance with the Board's customary formula; 7 and (4) that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. Having found that the Respondent violated the Act by maintaining in existence illegal union-security provisions, it will be recommended that the Respondent cease and desist from agreeing to, continuing in force, or giving effect to union-security provisions not authorized by Section 8 (a) (3) of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2 (5) of the Act. 3. By discharging Emmett A. Hunter the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By maintaining in existence an agreement containing illegal union-security provisions the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondent by maintaining in existence the above-mentioned union- security provisions did not thereby violate Section 8 (a) (3) of the Act, as alleged in the amended complaint. [Recommendations omitted from publication.] 9 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation V. N. L. R. B., 311 U. S. 7. 4 F. TV. Woolworth Company, 90 NLRB 289. Sears Roebuck and Co. and Teamsters, Chauffeurs, Warehouse- men & Helpers Local Union 390, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, AFL-CIO, Petitioner. Case No. 12-RC-36. June 21, 1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert N. Watterson, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Rodgers]. 118 NLRB No. 31.