Producers Transport, Inc.

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and defining certain rights of supervisors who have transferred from rank-and-file jobs, and accordingly must recommend dismissal of the complaint in its entirety 4 On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS or LAW 1 Respondent Kaiser is engaged in and at all times material herem has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent International and Respondents Local 2869 and Local 3677 are labor, organizations within the meaning of Section 2(5) of the Act 3 The Respondents have not engaged in any of the unfair labor practices alleged in the complaint [Recommendations omitted from publication 7 6 Cases cited by the General Counsel in support of his position are, in my opinion, inapposite, inasmuch as they merely hold that an applicant for employment may no more lawfully be discriminated against than an employee Cases cited by the General Counsel on the point Phelps Dodge Corp v N L R B , 313 U S :177, Utah Constructiion Co, 95 NLRB 196, John Hancock Mutual Life Insurance Coinpang v NLRB, 191 F 2d 483 Producers Transport, Inc. and Robert W. Pool Local 135, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Robert W. Pool. Cases Nos 35-CA-823 canal 35-CB-245 December 22, 1959 DECISION AND ORDER On August 6, 1959, Trial Examiner Vincent M Rotolo issued his Intermediate Report in the above-entitled proceeding, finding that the. Respondents had engaged in and were engaging in unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter, the General Counsel, the Respondent Company, and the Respondent Union filed exceptions to the Intermediate Report, the Respondent Company and the Re- spondent Union also filed briefs in support of their exceptions 1 The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the modifications noted below 4 I The Respondent Company has requested oral argument The request is denied as the record, exceptions , and briefs adequately present the issues and the positions of the parties 2 Pursuant to Section 3 (h) of the Act, the Board has delegated its powers in connection with this case to a three member panel [Members Rodgers , Bean, and Fanning] 3 The Trial Examiner stated that the Respondent Company's records show that two deductions of union dues were made from Pool's salary in each of the months of May and June 1957, the records show that the deductions were made in May and July 1957 Those records also show that the last dues deduction from Pools salary was made on September 7, 1957 The Intermediate Report is corrected accordingly 4 In adopting the finding of the Trial Examiner that the Respondent Company violated Section 8 ( a) (3) and ( 1) in discharging Pool, we rely only on Shop Steward Rimkus' 125 NLRB No 104 PRODUCERS TRANSPORT, INC. 1057 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 : A. Respondent Union, Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its. officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Company to, discriminate against employees in violation of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing em- ployees of the Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Jointly and severally with the Respondent Company make whole Robert W. Pool for any loss of pay he may have suffered as the result of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Notify Robert W. Pool and the Respondent Company, in writ- ing, that it withdraws its objections to Pool's employment and request the Respondent Company to offer him reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed. (c) Post at its office in Indianapolis, Indiana, and at all other lo- cations where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix A." 5. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by a representative of the Respondent Union, be posted by it immediately upon receipt thereof and be main- tained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. uncontradicted testimony that on January 17, 1958 , when Terminal Manager McCaslin showed him the letter from the Respondent Union requesting Pool's discharge because of dues delinquency , Rlmkus told McCaslin that he had given a check for Pool's dues to Union Business Agent Robbins a couple of weeks previously . Notwithstanding this notification , the Respondent Company made no attempt to check this information with the Union , apparently because it felt that it had no alternative but to accept the Union's discharge request. We find on the basis of the foregoing that the Respondent Company had reasonable grounds for believing that Pool had been suspended from membership for reasons other than this failure to tender the periodic dues required as a condition of retaining membership in the Respondent Union. 5In 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." 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Mail to the Regional Director for the Ninth Region signed copies marked "Appendix A" for posting by Respondent Company as provided herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent Union's representative, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Company, Producers Transport, Inc., Zionsville, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in Respondent Union by discharg- ing employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition, except to the extent permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Union make whole Robert W. Pool for any loss of pay he may have suffered as the result of the discrimination against him in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy." (b) Offer to Robert W. Pool immediate reinstatement to his former or a substantially equivalent position, without prejudice to the sen- iority or other rights and privileges he previously enjoyed. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay and the right of reinstatement under the terms of this Decision and Order. (d) Post at its terminal at Zionsville, Indiana, copies of the notice attached hereto marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company 11 See footnote 5. PRODUCERS TRANSPORT, INC. 1059 to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Ap- pendix A." (f) Mail to the Regional Director for the Ninth Region signed copies of the notice attached hereto marked "Appendix B" for posting by the Respondent Union at offices where notices to members are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of the Re- spondent Company, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause Producers Transport, Inc., to discriminate against employees in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Producers Transport, Inc., in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Producers Transport, Inc., make Robert W. Pool whole for loss of pay suffered as the result of the discrimination against him. WE WILL notify Robert W. Pool and Producers Transport, Inc., in writing, that we withdraw our objections to Pool's employ- ment with the aforesaid Company and that we request the said Company to offer him reinstatement to his former or a sub- stantially equivalent position without prejudice to the seniority or other rights and privileges he previously enjoyed. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, 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. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT encourage membership in Local 135, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Man- agement Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, make whole Robert W. Pool for loss of pay suf- fered as the result of discrimination against him. WE WILL offer to Robert W. Pool immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to the seniority or other rights and privileges he pre- viously enjoyed. PRODUCERS TRANSPORT, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed and served in the name of Robert W. Pool against Pro- ducers Transport, Inc. (hereinafter referred to as the Respondent Company), and Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as the Respondent Union), the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director of its Ninth Region to issue a consolidated complaint and notice of hearing on February 12, 1959, under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136-163), hereinafter referred to as the Act. With respect to the claimed unfair labor practices the complaint alleges, in substance, that the Respondent Company, at the request of the Respondent Union,. discharged Robert W. Pool on January 20, 1958, pursuant to the terms of a union- security clause of a collective-bargaining contract between the Respondent Company and Respondent Union, for nonpayment of dues to the Respondent Union notwith- standing that said Robert W. Pool had tendered and was tendering his dues to said PRODUCERS TRANSPORT, INC. 1061 Respondent Union. The complaint also alleges, in substance, that the Respondent Union caused the Respondent Company to unlawfully discharge Robert W. Pool on January 20, 1958, for nonpayment of dues under the terms of a union-security clause of a contract between the Respondent Company and Respondent Union notwithstanding that said Robert W. Pool had tendered and was tendering his dues to the Respondent Union. The conduct of the Respondent Company in discharging Pool is alleged to be an unfair labor practice violative of Section 8(a),(1) and (3) of the Act. The conduct of the Respondent Union in causing the discharge of Pool is alleged to be an unfair labor practice violative of Section 8(b)(1)(A) and (2) of the Act. By their answers to the complaint the Respondents admitted the jurisdictional allegations of the complaint and other factual allegations therein contained but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me, a duly designated Trial Examiner of the National Labor Relations Board, at Indianapolis, Indiana, on April 13, 14, and 15, 1959. All of the parties were represented by counsel and were afforded full opportunity to be heard, to' examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally on the record, and to file briefs and proposed findings and conclusions. I reserved decision on a motion made by the Respondents at the hearing to dismiss the complaint. The findings of fact and conclusions of law set forth below dispose of the motion. The Charging Party and Respondents filed briefs with me subsequent to the hearing. I have considered the contentions and arguments contained in these briefs in reaching my findings and conclusions set forth below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Producers Transport, Inc., a corporation of the State of Indiana, is a common carrier engaged in the business of transporting goods by motortruck and trailers. In connection with its business operations it has a central office located at New Buffalo, Michigan, with terminals located in the States of Michigan and Indiana. At Zions- ville, Indiana, it operates a terminal which is the only terminal involved in these proceedings. At said terminal it employs drivers of tanktrucks who deliver fuel oil and other petroleum products to various points located in and around the city of Indianapolis, Indiana. During the calendar year 1957 (which I find is a period representative of the normal operations of the Respondent Company prior to the filing of the charges in this proceeding) the Respondent Company received a gross income of $2,890,000 for rendering truck transportation services to its customers located in the States of Michigan and Indiana. I accordingly find that the Respondent Company is a common carrier engaged in the truck transportation business in and between the States of Michigan and Indiana. I conclude, therefore, that the Respondent Company is an employer engaged in commerce in and between States of the United States as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is an affiliate local of the International Brotherhood of Teamsters. It represents drivers of truck transportation companies operating in the central portion of the State of Indiana.' The last contract executed between the Respondent Company and Respondent Union covering the drivers at the Respondent Company's Zionsville terminal is dated June 25, 1957, to expire on May 31, 1963. 1 conclude, therefore, that the Respondent Union is a labor organi- zation within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary findings The Respondent Company's tanktruck drivers, working out of its Zionsville, Indiana, terminal, have been represented by the Respondent Union for the past 'For the purposes of collective bargaining the Respondent Union authorizes the Indiana Conference of Teamsters' Unions to negotiate collective-bargaining contracts on its behalf with representatives of the truck transportation companies. 535828-60-vol. 125-68 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several years. Contracts covering the wages, hours, and working conditions of these drivers are negotiated by the Respondent Company through an employers' committee which acts on behalf of a group of oil tanktruck transportation companies operating in the State of Indiana whose employees are represented by Teamster locals affiliated with the Indiana Conference of Teamsters' Unions. Bargaining for the locals is conducted by a committee of the conference which is composed of representatives of the affiliated Teamster locals. After an agreement has been reached between the two committees, copies of the agreement are sent to each member of the employers' group and to each Teamster local with directions to execute a copy of the agreement for each terminal.. A contract covering the Respondent Company's Zionsville terminal was thus executed by the Respondent Company and Respondent Union sometime in 1955 to expire in November 1957. This contract contained, among other things, union-shop and maintenance-of- membership clauses. In the early part of 1957, the Indiana Conference of Team- sters' Unions requested the employers' committee to renegotiate the existing con- tract in certain respects. This request was granted by the employers' committee and thereafter several conferences were held between the two committees until final agreement was reached on all terms of the new contract on June 21, 1957. On that date the chairman of the Conference Committee representing the Teamsters' locals, Eugene Sans Souci, sent a letter to all the oil truck transportation companies represented by the employers' committee advising them that final agreement had been reached between the two committees on all the terms of the new contract, and that they could execute copies of the new agreement at their respective terminals with the Teamster local or locals having jurisdiction over the terminals. Accord- ingly, on June 21, 1957, John T. Peirick, manager of the Respondent Company's petroleum products division, executed a copy of the new contract with the Respond- ent Union to cover the drivers employed at its Zionsville terminal. The new contract was executed for a period of 6 years to expire on May 31, 1963. No changes were made in the language of the union-shop and maintenance-of-membership clauses. The principal changes made in the terms of the old contract by the new agreement are economic in nature and have no relation whatsoever to the union-shop and maintenance-of-membership clauses? As indicated above the new contract contains union-shop and maintenance-of- membership clauses which are similar.in language to the clauses contained in the old contract .3 Prior to and at the time of the execution of the new contract Robert W. Pool, the Charging Party herein, was a member in good standing of the Respondent Union. Under the express terms of the new contract he was accordingly required to main- 2 The Charging Party contends that the old contract was extended prematurely be- yond its expiration date of November 1957 because the Legislature of the State of Indiana was then considering the adoption of a right-to-work statute which would pro- hibit the making of union-shop and maintenance-of-membership agreements. The law was adopted and put into effect on June 25, 1957. The Charging Party also contends that, in any event, the union-shop and maintenance-of-membership clauses of the new contract are invalid because the provisions of the new contract were not ratified by the employees of the Zionsville terminal until after the adoption of the right-to-work statute. I do not consider it necessary to pass upon these contentions in view of my findings and conclusions set forth below. However, were it necessary for me to pass upon them I would find them to be without merit. There is insufficient evidence in the record to support the contention that the old contract was prematurely extended in order to avoid the effects of the right-to-work statute which was then pending in the legislature. It does not appear, also that the parties to the contract contemplated that ratification of the new agreement by the employees at each terminal was to be a condition of the agreement. Although it appears that it was the general practice to present the contract to the employees of each terminal for their information and consideration and that minor changes were at times made to fit local conditions, it does not appear it was the intention of the parties that the new contract should not go into effect until it was ratified by the employees. Furthermore, the General Counsel's representative stated at the hearing that he was making no attack upon the validity of the union-shop and maintenance-of-membership clauses of the contract. a The maintenance-of-membership clause of the new contract reads as follows : ".. , that the continued employment by the employer in said unit of persons who are already mem- bers in good standing of the Union shall be conditioned upon those persons continuing their payments of the periodic dues of the Union ; further, the failure of any person to maintain his union membership in good standing as required herein shall, upon notice to the employer by the Union to such effect, obligate the employer to discharge such person." PRODUCERS TRANSPORT, INC. 1063 tain his good-standing membership in the Respondent Union as a condition of his continued employment at the Respondent Company's Zionsville terminal until the expiration of the new contract. The Respondent Union does not conduct its affairs under a written constitution of its own. The -basic requirements for acquiring and maintaining membership in good standing in the local are set forth in the constitution of the International Brotherhood of Teamsters of which the Respondent Union is an affiliate. Matters not covered by the International constitution are governed by local resolutions or by local usages and practices adopted by the officers and members. The time when the local's dues accrue and become payable and the consequences for the failure to pay dues on time are set forth in the International's constitution which provides that dues accrue to and become payable to the local on the first day of each and every month and that failure of a member to pay his dues when they become payable for 3 consecutive months results in his automatic suspension as a member in good standing of the local.4 The International constitution, however, does not contain provisions governing the procedure to be followed and the conditions under which members who have been automatically suspended for failure to pay dues for 3 consecutive months may be reinstated to good-standing membership in the local. The practice followed by the Respondent Union in this respect over a period of years has been to permit the suspended member to reacquire membership in good standing in the local on payment of a reinstatement fee plus all of the delinquent dues. If the suspended member seeks reinstatement within 1 year of his suspension he is required to pay a reinstatement fee of $10 plus all back dues he owes the local. If he seeks rein- statement more than 1 year from the date of his suspension, he is required to pay a reinstatement fee of $75 plus all back dues. Reinstatement is not considered complete until the full amount of the back dues owed the local are paid as well as the reinstatement fee. At the Respondent Company's Zionsville terminal it has al- ways been the policy of the Respondent Union not to request the permanent dis- charge of an employee who has lost his membership in good standing in the local for failure to pay his dues on time. With the exception of the Charging Party, Robert W. Pool, no driver at that terminal has ever been discharged for failure to pay dues on time. The practice followed by the Respondent Union's officers in such cases has always been to request the terminal's dispatcher to temporarily withhold assignments of work from the delinquent driver until he pays or makes arrangements to pay his back dues and to reinstate himself in good standing in the local. When he has done this the employee is again given his usual work assign- ments without suffering any prejudice to his seniority rights or other benefits and privileges under the contract. Temporary work suspensions of delinquent members under this practice have been of short duration, the delinquent member being permitted to return to his work as soon as he made arrangements with the Re- spondent Union's business agent or shop steward to pay the delinquent dues and reinstate himself in good standing in the local. The Respondent Union's membership is composed of approximately 8,000 drivers and helpers working out of truck transportation terminals located in the central part of the State of Indiana. Its office is located in the city of Indianapolis about 20 miles from the Respondent Company's Zionsville terminal. The International's constitution does not provide and the Respondent Union has not adopted a uniform method which members of the local are required to follow in making payments of their monthly dues. In practice some members make their dues payments at a dues payment window maintained at the union office for that purpose. Others send their dues remittances by mail addressed to the union office. Some others, working at a distance from the union office, make their payments to the business agent or to the shop steward assigned to the terminal by the Respondent Union. Collections of dues made by the shop steward are usually turned over to the business agent or to the dues cashier at the union office. About 7,000 of the Respondent Union's members, however, make their monthly dues payments I month in advance of the time that they become due and payable under a monthly checkoff arrange- ment between the employers and the Respondent Union which is set forth in the contract.5 * The amount of the monthly dues are fixed by the Respondent Union and were $5 per month when Pool was discharged. Contributions of 25 cents per week to the Union's welfare fund were also fixed by the Respondent Union and are collected together with the monthly dues each month. Thus the monthly payment made by each member is $6 or $6.25 depending on the number of weeks in each month. c The checkoff clause of the contract between the Respondent Company and Respondent Union reads as follows : "It is understood and agreed between the Employer and the 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The written checkoff authorization which the employee must sign to participate in the checkoff arrangement has been specified and adopted by the parties to the contract and is printed on a card furnished to the employee at the time he joins the local .6 Under the arrangement the employee is required to sign two copies of the au- thorization card and to deliver them to the Respondent Union's business agent or shop steward. One copy is retained by the Respondent Union at its office at Indian- apolis, the other copy being sent to the Employer's main office. As is apparent from a reading of the checkoff clause of the contract and the authorization form adopted by the parties under the arrangement, the Respondent Union is primarily interested in collecting its current dues from the employees 1 month in advance of the time they fall due. The language of the authorization also permits it, however, to request the deduction of back dues which for some reason or other were not pre- viously deducted from the employee's salary in the previous month. Such situations occur sometimes when an employee becomes sick or goes on leave or on vacation or is temporarily laid off. At such times the Respondent Union's policy under the arrangement is not to request dues deductions from the employee's salary for work performed by him in the period prior to his becoming sick, going on leave or vaca- tion, or before he was temporarily laid off. The procedure in making the monthly requests for dues deductions and for the making of deductions by the Respondent Company is as follows: About the last week of each month, Latimer Snyder, the Respondent Union's office secretary, prepares four copies of the dues checkoff request list. This list is headed as a list for the checkoff of dues for the month following the time when the dues are actually deducted from the employee's salary. On this list Snyder lists all of the employees known to be working at the particular terminal. Since the checkoff is primarily designed for the checkoff of current dues 1 month in advance of the time that they fall due, the checkoff request list is submitted to the Respondent Company during the early part of the month preceding the due date of the current dues. Thus a list prepared in the last week of July would be submitted to the Respondent Com- pany sometime in the early part of August for the deduction of dues which will become due and payable to the Union on September 1. However, to enable the Union that the Employer will deduct any back unpaid Union dues and initiation fees owed the Union as well as current monthly dues and initiation fees, from the pay checks of all employees who have signed proper legal authorization for such deductions and who are covered by this agreement, on the first pay day of the month preceding the current month for which current union dues and initiation fees are due to the Union. "The Employer further agrees to remit to the Secretary-Treasurer of the Union im- mediately after the checkoff pay day, all union dues and initiation fees so deducted from the pay checks of employees covered by this agreement." The checkoff authorization card used by the Respondent Company and Respondent Union reads as follows : Checkoff Authorization I, -------------------------------- hereby authorize Producers Transport, Inc., my employer, to deduct and withhold from my wages or any other remuneration as an employee, such amounts as my employer shall be advised from time to time by any of the authorized representatives of Chauffeurs, Teamsters, Warehousemen, and Helpers Local 135 as being due by me to said Local Union 135 by reason of dues and/or initiation fees and in any event no less than $5 In every month hereafter. I further request my employer to pay all such monies so deducted or withheld to the hands of the Secretary-Treasurer of said Local Union 135 on or before the 20th day of such deduction period. In consideration of the benefits which nave inured to me by reason of the contract negotiated on my behalf, I agree to hold the said Local Union 135 and my employer free and harmless from any demands, claims, damages, and the like by virtue of such deductions or withholding. I reserve the right, however, according to Federal law, to revoke the aforesaid authorization by giving written notice of such intention to my employer and to Local Union 135 by registered mail, not less than 20 days prior to the termination of the present. contract between my employer and. Local Union 135 or any amend- ment or renewal thereof. Employee's Signature Date PRODUCERS TRANSPORT, INC . 1065 business agent and the shop steward to know whether an employee on the list is current in the payment of his dues or if not how much he then owes the local for dues not previously checked off, the amount placed next to each employee's name indicates whether he has fallen behind in his dues because dues were not checked off in previous months. Thus, if an employee on the list is behind 2 months in his dues, the amount appearing on the list would be $18, $6 of which would be for the dues of the following month and $12 for the 2 months that dues were not checked off from his salary in previous months. After the request list has been prepared, Snyder gives three copies of same to the business agent in charge of the particular terminal, retaining one copy for her office file. The business agent then goes to the terminal and checks the work assignment records of each employee with the dispatcher to determine whether there are any employees on the list who have become sick, are going or have gone on vacation, or have been or are about to be temporarily laid off. Also, he ascertains then whether any employee has quit or been transferred to another terminal of the employer. He also ascertains then whether there are any new employees hired who have joined the Union. In each case, he makes the appropriate notation in ink on the list to indicate the particular situation of the employee at that time. After the list has thus been verified, cor- rected, and completed by the business agent with the assistance of the dispatcher, he then calls the union office to ascertain the exact amount of current and back dues which each employee on the list owes the local at that time. This is done because, in some cases, employees on the list may have paid part or all of their back dues to the cashier at the union office in the period between the preparation of the list and the time that the business agent goes to the terminal to verify and com- plete it. If any payments on account of back dues have been made by the employee in this interim period, the business agent corrects the amount on the list to reflect the amount he then actually owes the local. Having verified, corrected, and completed the list, the business agent then leaves two copies of the list with the dispatcher and returns one copy to the union office. The dispatcher then forwards the two cor- rected copies to the main office of the Company where the dues deductions are made. At the Company's main office further corrections are sometimes made on the list and appropriate notations are typed thereon showing the actual amount of dues deducted from each employee's salary in that month. After the deductions have been made and the notations as to the amount deducted are typed on the list next to each employee's name, one copy of the list is sent to the union office with a check for the total amount of dues deducted by the Respondent Company that month. On arrival of this list with the check for the total amount of the dues at the union office, Office Secretary Snyder totals the individual dues deductions appearing next to each employee's name on the list to see whether the check is sufficient to cover these deductions. If the amount of the check balances with the total of the dues deducted, she forwards the list and the check to the dues payment department where the dues bookkeeper posts the amount deducted from the em- ployee's salary in that month on his dues payment ledger card. Having done this, the bookkeeper returns the list to the business.agent together with the dues payments stamps corresponding to the dues payments made by each employee on the list. The business agent then delivers or sends the list and the. stamps to the shop steward at the terminal. The shop steward then distributes the dues payment stamps to the drivers and also uses the list for the purpose of soliciting and making collec- ions of back dues from the employees on the list who are still behind in the payment of their dues.7 'r Although it is the primary responsibility of the business agent to collect back dues, he is compelled, by reason of the drivers being away from the terminal most of the time, to delegate the collection of back dues to the shop steward. At the Zionsville terminal, the business agents have followed this practice for several years. Shop Steward Edward Rimkus credibly testified, without contradiction, that he solicited and collected back dues from the employees at that terminal for several years in accordance with instructions given to him by the business agent. The record also shows that Shop Steward' Rimkus acted as a channel of communication between the drivers at that terminal and the busi- ness agent and union office in matters related to the payment of back dues owed to the local and that he often made arrangements with delinquent drivers for the payment of their back dues to him for transmittal to the business agent or union office. In'view of the above, I find that Shop Steward Edward Rimkus, at all times material to this pro- ceeding, was acting as an agent of the Respondent Union for the collection of back dues from delinquent employees at the Respondent Company's Zionsville terminal and that the Respondent Union's officers recognized his authority to collect or make arrangements 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Sequence of events leading to. the Respondent Union's request that Pool be discharged Robert W. Pool, the Charging Party in this proceeding, was first employed as an oil tanktruck driver by the Respondent Company at its Zionsville terminal in Novem- ber 1953. On November 29, 1953, Pool made application to become a member of the Respondent Union and signed two copies of the checkoff authorization card. One copy of the card was thereafter sent to the Respondent Company's main office, and the other to the Respondent Union's office. On December 1, 1953, Pool was formally admitted as a member of the Respondent Union and his name was there- after included in the monthly checkoff request list sent by the Respondent Union to the Respondent Company. Pool's dues payment record card shows that his current and back dues were regularly checked off from his salary during the years 1954, 1955, 1956, and until the month of October 1957, when the deductions ceased and were not resumed thereafter.8 Because of the irregularities in the checkoff of his dues during the months of May and June 1957, Pool became dissatisfied with the manner in which the checkoff was being conducted. Late in August 1957, he inquired of Nadine Halstead, the Respondent Company's dispatcher at the Zionsville ter- minal,9 how he could remove himself from the monthly checkoff request list. Halstead told him that she did not know the procedure but would make inquiry about this for him from the business agent when he next came to the terminal. Shortly thereafter in the early part of September 1957, Robert (Red) Martin, the Respondent Union's business agent then in charge of the Zionsville terminal, ap- peared at the terminal and Halstead asked him how an employee could get off the monthly checkoff list. He then advised her that the employee was required to go to the Respondent Union's office in Indianapolis and make the request in writing. Pool credibly testified, without contradiction, that he told her then that the matter was no longer of importance to him because he had decided to remain on the checkoff.lo to collect back dues from delinquent members working at that terminal for transmittal to the business agent or union office. See International Woodworkers of America, AFL-CIO , Local 13 (Ralph L . Smith Lumber Company ), 119 NLRB 1681. s The Respondent Company's records of deductions of dues from Pool's salary in 1957 shows that no deduction was made from his salary during the month of April to cover the dues for the month of May. It also shows that during the month of May two deduc- tions were made from his salary, one on May 11 and the other on May 18. These deductions, when received by Respondent Union, were applied toward the dues he owed for the months of May and June 1957. In the month of June 1957, two deductions were again made from Pool's salary, one on June 6 and the other on June 20 ; these deduc- tions when received by the Respondent Union, were applied in payment of the dues he owed for the months of July and August 1957. The record further shows that no dues were deducted from Pool's salary during the month of August and that the last deduc- tion made from his salary occurred on September 7, 1957. This last deduction, when received by the Respondent Union was applied as payment for his September dues. The reason why two requests for dues were made in each of the months of May and June 1957 was not adequately explained by the Union's office secretary, Latimer Snyder, when she testified at the hearing. She admitted that requesting two deductions to be made in one month was not the usual procedure under the checkoff arrangement. 9 Nadine Halstead was the only management representative of the Respondent Company at the Zionsville terminal at that time. A terminal manager was later, during the month of November 1957, appointed by the Respondent Company. Prior to that time the Respondent Company recognized Halstead as its supervisor at the Zionsville terminal. 10 Pool denies that he ever actually made the request to be taken off the monthly checkoff request list , either at the Respondent Union's office or elsewhere . Roberta Ball, the Respondent Union's dues bookkeeper and cashier , testified, however, that about this time a driver who gave the name of Robert Pool appeared at her dues payment window at the union office and requested that he be taken off the monthly checkoff -request list. However, on cross-examination, she was unable to identify Pool as the person who appeared at her window at that time. She further testified that she then marked Pool's dues payment card "does not want on checkoff" and that she placed a blue tab on his card to indicate that he was no longer under the checkoff arrangement . She admits, however, that she did this without having obtained a written request to do so from the person who appeared at the window at that time ; that she marked the card the way she did for personal reasons because the person was rude and offensive to her at that time. I was not favorably impressed by Ball's testimony on this point . She was vague and inconsistent as to the circumstances which led her to mark Pool's card "does not want PRODUCERS TRANSPORT, INC. 1067 When Pool received his first paycheck in September 1957, he noticed that a deduc- tion of 1 month's dues had been made from his salary. Somewhat confused by the two deductions made during the months of May and June and believing that he was ahead more than 1 month in the payment of current dues, he concluded that the deduction made in the early part of September 1957 covered his current dues for the month of October. This conclusion, while erroneous, was not entirely un- warranted since the usual procedure, under the checkoff arrangement is to apply the deduction made in 1 month toward the current dues which a member is re- quired to make in the following month. As will be explained below, the September 7, 1957, deduction, however, was actually applied by the dues cashier towards Pool's back dues for the month of September instead of his current dues for the month of October. How this occurred is explained by the following. When Snyder prepared the checkoff request list to cover the dues for the month of September, she requested the Respondent Company to deduct $6 from Pool's salary. This list was entitled checkoff for dues of September 1957. It appears, however, that no deduction was made from Pool's salary pursuant to this request during the month of August to cover his September dues because he was on vacation at the time that the checkoff list reach the Company's main office in Buffalo, Michigan, in the early part of August 1957. Hence Pool's dues for September were unpaid when the next list was prepared. When Snyder prepared the next list covering the dues for the month of October, she requested that a deduction of $12 should be made from Pool's salary to cover the months of September and October. However, when Business Agent Martin checked this list at the terminal and called the dues cashier to verify the amounts on the list, she informed him that Pool was no longer on the checkoff arrangement accord- ing to her records. Martin accordingly crossed out the sum of $12 appearing next to Pool's name and noted in ink "not on the C/O" next to his name. However, when this list reached the Respondent Company's office in the early part of September 1957, the payroll clerk misinterpreted Martin's notation "not on C/O" next to Pool's name and believed that it was merely an indication by the business agent that no dues were to be checked off from Pool's salary in that month because Pool had been on vacation during August and had no salary coming to him at that time. But Pool had returned from his vacation in late August and had 1 week's salary due him by the time the list reached the Company's office. Disregarding Martin's notation "Not on C/O" next to Pool's name he deducted 1 month's dues from Pool's salary and so noted next to his name on the list. When this list reached the union office and the dues cashier took out Pool's dues payment card and saw that he was not sup- posed to be on the checkoff, she did not know what to do with the $6 deduction which the Respondent Company had made that month. She finally decided that the deduction having been made, she would apply it in payment of Pool's back dues for September instead of the current dues for October. Pool was not aware then that he had been taken off the checkoff arrangement and that the dues cashier had applied the September deduction toward the September instead of' October dues. In any event, the situation became more confused when Snyder prepared the next checkoff request list covering the dues for the month of November. Instead of eliminating Pool's name completely from the list she included him again on the list but typed the words "Not on C/O" next to his name, omitting the amounts of back dues he then owed for the month of October 1957. In fact she did not place any amount next to his name. Accordingly no dues were checked off from Pool's salary in that month. When this list was processed through and was returned to the busi- ness agent, who in turn delivered it to Shop Steward Rimkus sometime in the latter part of November 1957 to collect back dues owed by employees on the list, the notation Not on C/O" was seen by Pool for the first time. He inquired of Shop Steward Edward Rimkus what the notation meant. Rimkus told Pool that it meant he was off the checkoff arrangement and asked him whether he had not requested that it be so. Pool told him then that he had made inquiry to Halstead about getting off the list, but that he had never actually made the request. Pool then asked Rimkus how the situation could be remedied. After discussing the matter, they concluded that the best way to remedy the situation was for Pool to sign a new checkoff author- ization card to clear up any 'misunderstanding which the Respondent Union then on checkoff." She also admitted that on occasions she departed from union instructions concerning the collection of dues from delinquent members and used her own discretion in marking the dues payment card. She was subsequently discharged by the Respondent Union for indiscipline. I find that Ball's explanation concerning the marking of Pool's card "does not want on checkoff" to be too vague and insubstantial to overcome Pool's denial and to support a finding that she did so as a result of a request made by Pool at the union office that he be taken off the monthly checkoff request list. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had concerning his desire to remain on the monthly checkoff request list. Pool agreed to do this and asked Rimkus to get a new checkoff authorization card for him to sign . Rimkus told him he would get one for him when he next saw the business agent or went to the union office . A discussion then followed between them con- cerning the amount Pool owed for back dues. Rimkus told him he could not tell from the list as no amount was indicated there. Pool then told Rimkus that he believed his October dues were already paid because a deduction had been made from his salary during September . However he told Rimkus to check at the union office or with the business agent to ascertain the exact amount of back dues he owed. Rimkus told him not to worry about the back dues because the business agent al- ways told him how much to collect from each employee who was back in his dues and he then advised Pool to wait until he was advised how much he owed for back dues. However , it appears that during this time Business Agent Martin was removed as agent in charge of the Zionsville terminal and his place was taken by Business Agent Loren Robbins. It does not appear that either Martin or Robbins saw Rimkus at any time during the remainder of the month of November 1957. However, Robbins did go to the Zionsville terminal on Decmeber 2, 1957, to verify the monthly checkoff request list covering the January dues, but it so happened that Shop Steward Rimkus was not there when he arrived at the terminal . At that time Robbins noted that Pool's name was on the list with the notation "not on C/O" next to his name. Apparently advised by Dues Cashier Roberta Ball that no dues had been checked off from Pool's salary, Robbins left word with Dispatcher Halstead to have Pool con- tact him at the union office about the matter. It does not appear , however, whether Halstead ever gave Pool this message. In any event , Pool did not meet with Robbins at any time during the month of December believing perhaps that the arrangement he had made with Shop Steward Rimkus in November was sufficient to take care of the situation . However, Shop Steward Rimkus had no occasion to go to the union office during the month of December , but he did meet Business Agent Robbins by accident on December 5, 1957, at another terminal of the Respondent Company located at Rockville, Indiana. At that time they discussed the dues delinquency situation of the drivers at the Zionsville terminal. For some unexplained reason Rimkus failed to mention Pool's situation to Robbins at that time. He failed to tell Business Agent Robins that Pool desired to remain on the checkoff and to pay what- ever back dues he owned the Respondent Union . Robbins, on his part , failed to mention Pool as one of the serious deliquents at the Zionsville terminal, concerning himself more with the delinquency of two other drivers , Wesley Pell and Newton Thompson, who were then several months behind in their dues. It was the custom of Dues Cashier Roberta Ball to check the dues payment card of each driver on the 10th day of each month to ascertain whether the driver was more than 3 months behind in the payment of his dues . If the driver was behind more than 3 months and had failed to make any payments by the 10th day of the 3rd month, she marked his card with the word "Suspended." This mark indicated that the employee was then suspended from his good -standing membership in the Union and that he was required to pay a reinstatement fee as well as the back dues in order to reacquire membership in the Union . Apparently she stamped Pool's payment card in this manner when she checked the cards on December 10, 1957, because at that time the dues payment card of Pool indicated that he was delinquent for the months of October , November, and December, 1957. Having suspended Pool as a member in good standing on December 10, 1957, Pool was thereafter required under the Respondent Union's rules to pay a reinstatement fee of $10 and all back dues before he could reacquire membership in good standing. However, no notice of his suspension from membership was given to Pool by the union office during the month of December 1957, with the result that on January 1, 1958, Pool became deliquent for the 4th consecutive month. Robbins testified that he went to the Zionsville terminal during the latter part of December 1957, and that he left word with Dispatcher Halstead again that Pool should go to the union office to rein- state himself as he was then delinquent more than 3 months. It does not appear whether Halstead ever gave him this message. In any event Rimkus met Robbins again on the night of January 2, 1958, when he went to the union hall in Indianapo- lis to deliver a grievance which was being filed by some other drivers of the Zions- ville terminal against "Chuck " Nolan, a brother of one of the Respondent Union's business agents.rl u The Charging Party contends that Pool's preparation of the grievance for these drivers was the real motive behind the Respondent Union's request to discharge him under the contract. However, the evidence in the record does not support this conten- tion of the Charging Party. PRODUCERS TRANSPORT, INC. 1069 After Rimkus delivered the grievance to Robbins, he informed Robbins that Pool's elimination from the monthly checkoff arrangement was probably an error because Pool was insisting that he never had actually made the request to be taken off the checkoff and that he wanted his dues to be checked off from his salary. He also told Robbins that Pool was willing to sign a new checkoff authorization card to prove that he always wanted to remain on the checkoff. Robbins was pleased by this report of Pool's intention to remain on the checkoff and told Rimkus he would give him a new checkoff authorization card for Pool to sign as soon as he came out of a special meeting he was scheduled to hold in a few minutes at the union hall. Rim- kus then asked Robbins if he knew how much Pool was behind in his dues because Pool was offering to pay whatever he owned the local for back dues. Robbins told him that he did not know the exact amount that Pool then owed the local and could not find out at that time as the dues department office was closed. Robbins told Rimkus to collect "a couple of months' anyhow." 12 Rimkus waited for Robbins to come out of the special meeting to obtain the new checkoff authorization card for Pool to sign, but Robbins delayed so long at the meeting that Rimkus was forced to leave without seeing him again that night. On January 3, 1958, Robbins had occasion to go to the Zionsville terminal to verify and complete the checkoff request list covering the dues for the month of February. While there he again informed Halstead that Pool was behind in the payment of his dues and requested her to inform him when he came to the terminal that he should go to the union office to take care of the matter. Pool admits that he received this message from Halstead when he returned to the terminal on that day. However, later on the same day, he met Shop Steward Rimkus at the terminal. Pool told Rimkus at that time that Robbins had told Dispatcher Halstead that he was delinquent in his dues and that he should go to the union office to pay them up. Rimkus then told Pool that he had seen Robbins on the previous day and had had a conversation with him about his back dues; that Robbins was not able to tell him what the exact amount that he then owed the Union but that in any event he should pay "a couple of months' anyhow." Pool then suggested that he make a check for more than 2 months' dues in order to be safe, but Rimkus discouraged him from doing so, stating that Robbins had instructed him to get a check for only 2 months' dues until the exact amount he owed the local could be ascer- tained from the Union's records. A discussion then followed between them as to what months the payment was to be applied. Pool again expressed the opinion that his October dues had been paid by the deduction made from his salary on September 7, 1958. Rimkus then suggested that he mark the check as payment for the months of November and December, and if the union record showed that he also owed for the month of October, he could make another check later to cover that month. Rimkus then informed Pool that he expected to see Robbins again on Sunday, January 5, at the regular monthly meeting of the oil tanktruck drivers of the Union. Pool then requested Rimkus to deliver the check to Robbins when he saw him at the meeting. Rimkus agreed,to do so. Accordingly, on the follow- ing day, January 4, 1958, Pool gave Rimkus a check for $12 marked with the notation, "Dues, November and December," and instructed him to deliver the check to Robbins at the union hall on the following day. He also requested Rimkus to ascertain from Robbins how much more, if anything, he still owed the local so that he could give him another check. When Rimkus saw Robbins at the union hall on the following day, he gave him Pool's check for $12 and asked him if Pool owed any more back dues. Robbins told him he did not know and could not find out at that time because the union office was closed, it being a Sunday. Robbins took the check, looked at it, and put it in his pocket without making any comments.13 "Robbins denies that he ever made such a statement to Shop Steward Rimkus and insists instead that lie told him that Pool's dues were paid up to the end of September 1957. Rimkus denies that Robbins ever made this statement to him and insists that Robbins told him he did not know how far behind, Pool was in his dues at that time. I credit Shop Steward Rimkus' version of the conversation because I believe that Robbins was in a hurry at that time to go to the special meeting and was not in a frame of mind to recall exactly how much Pool owed at that time. In any event Rimkus' version is more consistent with the events which followed this conversation. 18 Robbins admitted at the hearing that he looked at the check when Rimkus gave it to him but does not remember whether lie read the notation on it. He insists, however, that he again told Rimkus at that time that Pool was paid up to the end of September 1957. In any event, he admits that he did not give Rimkus the exact amount of Pool's back dues and that he accepted the check with the notation on it. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rimkus again asked Robbins for a new checkoff authorization card for Pool to sign, but Robbins told him he had none available and had no time to look for one. On the following Tuesday, January 7, Robbins gave Pool's check to Roberta Ball, the dues cashier at the union office. Robbins admits that he delivered the check to Ball without making any comments and that he did not give Ball any instructions as to the months to which the money should be applied on Pool's dues payment card. Ball then checked Pool's payment card and noted that Pool had been sus- pended from membership during the month of December 1957, and that under the Union's rules, he had to pay a $10 reinstatement fee in order to reinstate himself to good-standing membership. Disregarding the notation on the check that it was being offered as a payment for the back dues of November and December 1957, she applied $10 of the check to conditionally reinstate him as a member subject to the payment of the balance of the dues. The balance of $2 from the check she applied towards the back dues for October which Pool then owed. It does not appear that she informed Robbins that she did this at that time. Nor did she ever give Pool or Rimkus notice that the check's funds had not been applied toward the payment of the delinquent November and December 1957 dues and that Pool had been suspended and only conditionally reinstated. Thus Pool was led to believe that his check for $12 had cleared up his delinquent November and December dues and that he was still a member of the Union. This is so because Rimkus met Pool at the terminal one day during the following week and told him that all was well because Robbins had accepted his check for the November and December dues without making any comments about it and that Robbins could not yet tell him what other back dues he still owed because the union office was closed when he saw him, it being then a Sunday. He advised Pool to wait until Robbins or the union office advised him whether he owed any additional back dues. As will appear from the recital of the events which occurred thereafter, neither Pool nor Rimkus knew at any time before January 17 that Pool had been suspended as a member and that the $12 check accepted by Robbins in payment of his November and December dues was used by Dues Cashier Ball to conditionally reinstate Pool as a member in the Respondent Union subject to his payment of the back dues for the months of October, November, December, 1957 and January 1958. C. The discharge of Pool on January 20, 1957 When Roberta Ball again checked the dues payment cards of the drivers at the Zionsville terminal on January 10, 1958, to ascertain what drivers of that terminal were delinquent more than 3 months in the payment of their dues, she noted that Pool had paid his reinstatement fee but not his back dues for October, November, and December, 1957 and January 1958. She apparently reported this to Business Agent Robbins because a few days thereafter he conferred with Union President Eugene Sans Souci about Pool's continued delinquency in the payment of his back dues. Robbins reported that Pool had failed to pay his monthly dues after requesting that he be taken off the checkoff list in September 1957; that he had been warned several times thereafter to go to the union office to pay up his back dues; that Pool had sent a check which was insufficient to cover the reinstatement fee and all of the back dues he then owed the local and that Pool had ignored his repeated requests to go to the union office to pay his back dues. Robbins then recom- mended that Pool be discharged under the maintenance-of-membership clause of the contract. From Robbins' own testimony I find that an agreement was made between them at the time that the request should be made and that Pool should not be allowed to complete his reinstatement in the.Union by paying the balance of the back dues through the usual channels until approval of his reinstatement was obtained by him personally from the union president. In accordance with this plan Union President Sans Souci dispatched a letter to the Respondent Company's Zionsville terminal manager, Howard McCaslin, requesting Pool's discharge because of his suspension from the local for nonpayment of dues. He also instructed Dues Cashier Roberta Ball not to accept any dues offered by Pool at her window without his prior approval. She accordingly marked Pool's dues payment card "do not accept dues per Gene, 1-15-58." That Robbins and Sans Souci planned to prevent Pool from reinstating himself by paying the balance of his back dues through the channels usually open to other members who had lost their good-standing member- ship in the local is further indicated by the events which occurred between January 15 and 20, 1958. On the morning of January 17, 1958, Robbins went to the Zionsville terminal to deliver to Shop Steward Rimkus the checkoff request list and dues payment stamps of the dues which had been checked off for the month of February 1958. When Rimkus inspected the list he noted that Robbins had written: "Paid for 9, 1957" next PRODUCERS TRANSPORT, INC. 1071 to Pool's name. Since Rimkus, like Pool, believed that Robbins' acceptance of Pool's check for $12 with the notation "Dues, November and December" indicated that the Respondent Union had accepted Pool's tender of his back dues for November and December and that he would be advised of any other amount he still owed the local later, he asked Robbins what the -notation on the list meant. Robbins then disclosed that Pool had been suspended from membership and that he had to pay a $10 reinstatement fee before he could reinstate himself as a member of the local and that $10 of the $12 check had been applied in payment of the reinstatement fee. He did not tell Rimkus then that a request for Pool's discharge had already been sent to the terminal manager and of the plan to force Pool to obtain the approval of President Sans Souci before he could complete his reinstatement. When Rimkus saw Terminal Manager McCaslin later that morning he was shown the Respondent Union's request to discharge Pool. Rimkus told McCaslin that he thought the Respondent Union was not justified in making the request since Pool had given him a check to cover his delinquent dues for November and December only 2 weeks before which was accepted by Robbins and that he had made arrangements with Pool to pay the balance later when the exact amount was ascertained. McCaslin told him he was obliged to accept the Respondent Union's statement that Pool was suspended from the local for nonpayment of dues and that he had no alternative but to discharge Pool under the terms of the contract. When Rimkus saw Pool later that day he told him McCaslin had a letter from the union president which he should see. Accompanied by Rimkus, Pool went to McCaslin's office where he was shown the discharge request letter. Pool also told McCaslin that the Respondent Union was not justified in making the request because it had led him to believe he was paid up for his November and December back dues when Robbins accepted his check with that notation on it only 2 weeks before. McCaslin told him, however, he had to accept the Respondent Union's statement that he was suspended from the local and had to discharge him under the contract. Pool and Rimkus then dis- cussed what they could do to avoid the discharge. They decided to go to the Board's office in Indianapolis to seek advice. On arrival there Rimkus suggested he call Robbins first and ask him what could be done to avoid the discharge. When he finally contacted Robbins at the union office, he first asked him why he was not told that morning when they met at the terminal that a request for Pool's discharge had been made. Robbins told him there was no obligation on his part to tell anyone that a discharge is being requested by the local. Rimkus then asked him what could be done to avoid the discharge. Robbins replied that at that stage noth- ing could be done since once the discharge request action was taken by the local it was final unless reversed by the union president. Rimkus then told Robbins that Pool was with him and wanted to say something to him. Robbins agreed to talk to Pool and when Pool asked him what he could do to avoid his discharge Robbins told him that it was up to President Sans Souci because it was he who had made the decision to request his discharge. Pool then told him he would go right then to the union office and pay whatever was necessary to get himself completely rein- stated but Robbins told him he would have to get Sans Souci's approval first. Pool then reminded him that Wesley Pell had been delinquent much more than he and that his back dues had been accepted and had been reinstated without clearing with Sans Souci. Robbins answer that Pell's case was different since Pell had "completely reinstated himself by paying the reinstatement fee and all the back dues he owed at one time. Pool then asked why he could not "completely reinstate" himself by paying the balance of the back dues he owed the local. Robbins again told him he would have to see Sans Souci first.14 Pool then requested Robbins to talk to President Sans Souci and get his permission for him to pay the balance of his delinquent dues so that he could be reinstated immediately. Robbins promised to talk to President Sans Souci about it over the weekend and that he would call Pool at his home. On the following day Pool called Robbins at his home to find out whether Sans Souci had given his clearance for his reinstatement, but Robbins told him he had not seen him on that day. He promised to see Sans Souci on the follow- ing day -and to call Pool at his home. On the following day, January 19, Robbins "Robbins admitted at the hearing that had Pool gone to the union office that after- noon to pay the balance of the back dues he owed the local, his money would not have been accepted at the dues payment window because Dues Cashier Ball had received orders from President Sans Souci not to accept them without his prior approval. He explained that the purpose of the stop order on the acceptance of Pool's tender of dues was to force Pool to go to President Sans Souci to request permission for his reinstate- ment as a member at which time he would be given a reprimand for his action in going off the checkoff and then not paying his dues on time. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called Pool at his home to tell him that he could do nothing for him and that it was necessary that he call President Sans Souci himself and make an appointment to see him. Early on the following morning, January 20, 1958, when Pool arrived at the Zionsville terminal to report for work, Terminal Manager McCaslin handed him a letter informing him that he was being discharged at the Respondent Union's request for delinquency in the payment of his dues. Pool immediately went to the Board's office in Indianapolis and filed unfair labor practice charges against both the Respondent Company and the Respondent Union.15 Contentions of the Parties The General Counsel's main contention in this case is that the checkoff authoriza- tion which Pool made to the Respondent Company and the Respondent Union on November 29, 1953, had the legal effect of not only authorizing the Respondent Union to request and the Respondent Company to make deductions from his salary each month to pay back and current dues but that it also operated as a continuing notice of both Respondents that he wished to be a participant in the monthly checkoff arrangement set forth in the existing collective-bargaining contract or any renewal thereof until he gave them notice in writing that he no longer wished to be a par- ticipant in the arrangement. He further contends that having indicated, by his execution of the checkoff authorization card on November 29, 1953, his desire to participate in the checkoff arrangement of the contract, the Respondents were obligated under the express terms of the authorization, to continue him under the arrangement until he gave them notice, in writing, to revoke the authorization. He points out that the Respondent Company concedes that it never received such a notice from Pool, either orally or in writing, and made no inquiry about the matter to its dispatcher, Halstead, or Pool after September 1957 and consequently there was no justification whatever for accepting the Respondent Union's representation that he was no longer to be included in the checkoff arrangement. It was bound, he argues, by the terms of the checkoff authorization itself, to obtain written con- firmation from Pool of the Respondent Union's statement that Pool was no longer to be included in the monthly checkoff. He argues further that since the Respondent Company took it upon itself to eliminate Pool from the monthly checkoff after September 1957 at the mere say-so of the Respondent Union without obtaining written confirmation from Pool, it cannot now contend that the dues delinquency of Pool resulting from his elimination from the monthly checkoff, justifies its action in discharging him under the contract for such delinquency. He concludes that, in any event, Pool made it clear to Dispatcher Nadine Halstead in September 1957 when she advised him of the procedure to be followed to be removed from the monthly checkoff request list, that he had changed his mind about it and wished to remain on the checkoff. In the alternative, the General Counsel contends that, quite apart from the legal obligation which the Respondent Company and Respondent Union owed Pool under the unrevoked checkoff authorization, the Respondent Union was not legally justi- fied in making a request for Pool's discharge on January 15, 1958, because it had prior thereto, on January 5, 1958, accepted a tender which Pool made of his back dues covering the months of November and December 1957 and that by such acceptance it waived its right under the contract to request his discharge for being delinquent for the months of October, November, and December, 1957. He fur- ther argues that, in any case it is estopped from asserting that Pool was still delin- quent in January 1958 for more than 3 months because it accepted Pool's check and gave him no notice the moneys represented by the check for the back dues of November and December 1957 were applied towards the payment of the reinstate- ment fee and not towards his back dues of November and December 1957. Under these circumstances, he argues, the Respondent Company should also be estopped from asserting its contract right as a defense because it knew that Pool had tendered his dues for the months of November and December 1957 and that the Respondent Union had accepted the tender. As a final argument the General Counsel contends, w After the filing of the charges by Pool on January 20, 1958, President Sans Souci sent Pool a series of letters urging him to meet with him at the union office and make arrangements to pay tip his delinquent dues and restore himself to membership in good standing. However, none of these letters offered to restore Pool to his job with the Respondent Company if he did so. When Pool finally answered one of the letters to inform Sans Souci that lie was willing to meet with him and make arrangements to pay up the delinquent dues he owed provided he was first restored to his job, President Sans Souci made no answer to this letter and the matter came to an end at that time. PRODUCERS TRANSPORT, INC. 1073 that, even assuming that Pool was still vulnerable on January 15, 1958, to dis- charge for his failure to pay his dues for the months of October, November, and December, 1957, he made a full and unqualified tender on January 17, 1958, 3 days before his actual discharge, to Business Agent Robbins to pay all the back dues he owed the local and that Robbins' rejection of this tender because Pool had not obtained permission from Union President Sans Souci to pay up the back dues, precludes it now from asserting the contract as a defense.16 The Respondent Company contends that it was obliged under the terms of the union-security clause of the contract to accept the Respondent Union's statement that Pool was delinquent in the payment of his dues and had been suspended from membership in the local. It further contends that it had no legal obligation to question this statement and that, on the contrary, it was legally obliged, under the express terms of the contract, to discharge an employee whenever the Respond- ent Union reported he had lost his membership because of his failure to pay the monthly dues and requested his discharge under the contract for this reason. It argues in the alternative that even if it could, under the statute, be held responsible where it has received knowledge that a tender of the delinquent dues is made by the employee it in fact had no knowledge that Pool had tendered or was tendering the delinquent dues to the Respondent Union at the time the discharge was made. As to the unrevoked checkoff authorization it had from Pool, it argues that it cannot be considered as a continuous notice of tender to the Respondent Union of the delinquent dues since its obligation under the authorization was to make the deductions only when and if the Respondent Union requested that the deduc- tions be made and that it cannot be held responsible if the Respondent Union failed to make the requests after September 1957. Finally it contends that, in any event, Pool waived whatever rights he had against the Respondent Company by accepting his paychecks without the deductions after September 1957. The Respondent Union's principal contention is that Pool made an oral request at the union office sometime in late August or early September 1957 that he be removed from the monthly checkoff request list and that the Respondent Union relying upon such request, removed him from the checkoff arrangement. It con- tends that Pool thereafter failed to pay his monthly dues for over 3 months and was accordingly suspended from membership in the local under the Union's rules. It contends that Pool knew he was not on the checkoff arrangement beginning with October 1957; that he failed to pay his dues for October, November, and December, 1957 and was suspended; that he was requested several times to go to the union office and pay up his back dues; that he ignored the requests; and that finally in January 1958 it was compelled to request his discharge under the contract. Conclusions Section 8(b)(2) of the Act prohibits a union from causing or attempting to cause an employer to discriminate-in regards to the hire, tenure, or condition of employment of any employee covered by a union-security agreement ". . . with respect to whom membership in such organization 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." Section 8(a)(3) of the Act prohibits an employer from justifying any discrimi- nation practiced against any employee covered by a valid union-security agree- ment, in regard to his hire, tenure, or conditions of employment based on the em- ployees' nonmembership in the contracting union if he has "reasonable grounds for believing" (1) ".. that such membership was not available to the employee on the same terms and conditions generally applicable to other members" or (2) that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Applying these statutory tests in the instant proceeding it becomes clear that the question whether the Respondent Union violated Section 8(b)(2) of the Act "The Charging Party adopted and supported all the contentions of the General Counsel at the hearing and in his brief. As indicated above it further contends that the union-security agreement of the contract under which Pool was discharged is invalid under the Indiana right-to-work statute. I have already indicated that I deem it un- necessary to pass upon the validity of the agreement under the State statute in this proceeding in view of my findings and conclusions based upon the issues raised between the General Counsel and the Respondents. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD depends on whether it requested Pool's discharge while any one of the following. conditions existed : (a) Pool's membership in the Respondent Union had been. terminated prior to January 15 , 1958, on some ground other than his failure to tender the periodic dues uniformly required by the Respondent Union as a condition of retention of membership in its organization or (b) Pool was being denied an. opportunity to acquire new membership in the Respondent Union at that time on some ground other than his failure to tender the reinstatement fee and the periodic dues which the Respondent Union uniformly required from its members as a condition of reinstatement whenever they were automatically suspended from membership under the Respondent Union's rules for failure to pay dues on time. The question whether the Respondent Company violated Section 8(a)(3) of the. Act depends upon whether it had reasonable grounds for believing that any one of the following conditions existed at the time that it discharged Pool: (1 ) Pool's. membership in the Respondent Union had been terminated by the Respondent Union for reasons other than his failure to tender the periodic dues uniformly required by the Respondent Union as a condition of retention of membership in its organi- zation or (2) Pool was being denied new membership in the Respondent Union for reasons other than his failure to tender the reinstatement fee and periodic dues which the Respondent Union uniformly required from its members as a condition to their reinstatement to good -standing membership whenever they were automatically suspended for failure to pay dues on time or (3) Pool was not being given the same privileges and opportunity to reinstate himself in good-standing membership in the Respondent Union as the Respondent Union gave to other mem- bers who had been reinstated after they lost their good-standing membership in the Respondent Union for failure to pay dues on time. Taking up the first question as to whether Pool's membership in the Respondent Union had been terminated prior to January 15, 1958, for reasons other than his failure to tender the periodic dues uniformly required by it as a condition for re - taining membership in its organization , I have come to the conclusion that the real cause of Pool's loss of good-standing membership in the Respondent Union was the Respondent Union's failure to request the deduction of Pool's monthly dues from his salary in the period following September 1957 as authorized by the checkoff authorization which Pool executed in November 1953. Having found that Pool did not, as the Respondent Union contends , revoke this authorization and that it was in full force and effect in the period following September 1957, I hold that it operated as a continuing tender by Pool to the Respondent Union of any back and current dues which Pool owed the Respondent Union in the period following September 1957 . See Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1461-1462. In the face of this continuing tender by Pool of his back and current dues, any termination of Pool's membership by the Respondent Union after September 1957 must, of necessity, have been caused by some reason other than his failure to tender his monthly dues. It is not necessary to go far to ascertain what this other reason was in this case. The reason was simply that the Respondent Union did not exer cise its power under the checkoff authorization to request the deduction of Pool's back and current dues from his salary in the period following September 1957.. This was the reason which eventually caused Pool to lose his membership in the Respondent Union and not his failure to tender the dues. Whether .the Respondent Union failed to make the requests for the dues deductions from Pool's salary because it sincerely believed Pool wanted to revoke his authorization or by some misunder-. standing on the part of its office personnel is not the real issue in this case. Pool's; checkoff authorization was as a matter of law still outstanding and unrevoked. Any termination of Pool 's good-standing membership based on his alleged failure to pay his monthly dues on time was bound to be an act of the Respondent Union which had no legal justification . But there is other evidence in the record which supports my conclusion that it was the Respondent Union's failure to act under the checkoff authorization that caused Pool's delinquency in the payment of his, dues for 3 consecutive months and resulted in his consequent automatic suspension as a member in good standing in the Respondent Union. Pool informed the Respondent Union's shop steward, Edward Rimkus , in November 1957 (before he became delinquent for the 3rd consecutive month ) that his exclusion from the monthly checkoff was not in accordance with his desire and that he wanted to. continue under the checkoff. ,Had Shop Steward Rimkus acted promptly at that time to have Pool again included in the monthly checkoff, he would not have been suspended from member, PRODUCERS TRANSPORT, INC. 1075 ship, as he was in December 1957 . Unfortunately, Shop Steward Rimkus did not communicate Pool's request to be continued on the monthly checkoff to anyone connected with the Respondent Union 's office until January 2, 1958 , when he reported to Business Agent Robbins that Pool's exclusion from the monthly checkoff was an errer and contrary to Pool's desire. In such circumstances it is the Respond- ent Union which must suffer the consequences for the failure of its authorized agent, Shop Steward Rimkus , to act promptly in the matter. Had Rimkus taken up Pool's situation with Robbins when he met him at the Respondent Company's Rockville terminal on December 5, 1957, Pool probably would not have lost his membership on December 10, 1957. In any event it was the failure of one of the Respondent Union's agents to act promptly in the matter that really caused the termination of Pool's membership in the Respondent Union on December 10, 1957. This omission on the part of Shop Steward Rimkus was, in addition to the Respond- ent Union's failure to act prior thereto under the checkoff authorization, a con- tributing reason which caused Pool's loss of membership in the Respondent Union and not Poole's failure to tender the dues. It may be that originally the Respondent Union's agents acted under a sincere although mistaken belief that Pool had revoked his checkoff authorization when they eliminated Pool from the checkoff in September 1957, but whatever the situation may have been then , Pool made it clear to an authorized agent of the Respondent Union prior to his suspension from membership that he had not revoked his checkoff authorization and that he wished the Respondent Union to deduct the dues he owed the Respondent Union from his salary. That his request was not acted upon by the Respondent Union because of poor liaison between its shop steward and Business Agent Robbins or the union office should not be a reason for depriving Pool of the protection which the Act affords him. I further conclude that in any event the Respondent Union should now be pre- cluded from asserting the contract as a defense to the charge because Pool per- sonally made a full and unqualified tender of whatever back dues he owed to the Respondent Union to Business Agent Robbins prior to his actual discharge . Robbins rejected this tender because Pool had not obtained the approval of Union President Sans Souci for his reinstatement to good-standing membership in the Respondent Union, a condition it did not impose on other suspended members. In the circum- stances of this case, I hold that this personal tender of the dues by Pool, although belated and coming after the request for discharge had been made, protected Pool from discharge under the contract . Aluminum Workers International Union (The Metal Ware Corporation), 112 NLRB 619, enfd. 230 F. 2d 515 (C.A. 7). To further support my conclusion that the Respondent Union should now be precluded from asserting its contract as a defense to the charge , is the fact that the Respondent Union's Business Agent Robbins accepted a tender which Pool made on January 5, 1958, of money in payment of the delinquent dues for the months of November and December 1957. Having accepted this tender , the Respondent Union could not thereafter insist that Pool was still delinquent for these 2 months and base a request for discharge thereon . See Technicolor Motion Picture Corpora- tion, 122 NLRB 73; International Woodworkers of America, AFL-CIO, Local 13 (Ralph L. Smith Lumber Company), 117 NLRB 405. Furthermore, implicit in its action in using the money tendered by Pool on January 5 in payment of his November and December dues as the reinstatement fee for Pool's reacquisition of membership in its organization was the promise that Pool would have a reasonable opportunity to complete his reinstatement by paying whatever balance he owed for back dues at that time under the same terms and conditions previously granted to other members who had been suspended and that it would not request his permanent discharge under the contract in the meantime . I find that the Respondent Union did not give Pool such an opportunity because after it used the tendered November and December dues money as a reinstatement fee it thereafter requested his permanent, instead of temporary, suspension of work under the contract because of his previous delinquency in the payment of his October , November, and Decem- ber, 1957, dues, without giving him any notice or warning that he was only conditionally reinstated and that he was still required to pay the November and December dues. It also imposed upon him the additional requirement that he get clearance from the union president before he could acquire new membership in the Respondent Union. For the above reasons I hold that the Respondent Union's request to discharge Pool was unlawful when made and that it thereby unlawfully caused the Respondent Company to discharge Pool on January 20, 1958. By such conduct it violated Section 8 (b)(2) and ( 1)(A) of the Act. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only remaining substantive question is whether the Respondent Company had reasonable grounds for believing either that Pool 's membership in the Respond- ent Union was terminated or denied for some reason other than his failure to tender the monthly dues to the Respondent Union or that new membership was not being made available to him on the same terms and conditions it had generally applied to other members who had similarly been suspended in the past. It has been conceded by the Respondent Company that it never received 'a request from Pool, either orally or in writing, to be taken off the monthly checkoff list or any notice from Pool that the checkoff authorization which he executed in November 1953 was revoked . While it is true that the Respondent Company was authorized, under the terms of the checkoff authorization , to make deductions from Pool's salary only when and if the Respondent Union requested them, the unrevoked checkoff authorization nevertheless operated as a continuing notice to it from Pool that he was still a participant in the checkoff arrangement of the contract. The Respondent Company's acceptance of the Respondent Union 's statement that Pool was no longer a participant in the checkoff arrangement without it making an investigation to ascertain whether this was the desire of Pool and obtaining a written revocation of the checkoff authorization from him, was another contributing reason for Pool's subsequent termination of membership in the Respondent Union. Under such circumstances the Respondent Company cannot now justify Pool's discharge under the contract for his loss of membership in the Respondent Union. That the Respondent Company had more than the unrevoked checkoff authorization to give it grounds for believing that the Respondent Union 's elimination of Pool from the checkoff might be improper is indicated by other evidence in the record. I have found that Nadine Halstead , the Respondent Company's dispatcher at its Zionsville terminal, was an agent of the Respondent Company in charge of that terminal in September 1957. At that time Pool told her that he had changed his mind about going off the checkoff arrangement and that he wished to continue on the monthly checkoff list . Halstead was then a source of information to both the Respondent Company and Respondent Union for the verification and completion of the monthly checkoff list before it was sent to the Respondent Company's main office. Halstead's failure to inform both the Respondent Union's agents when they subsequently went to the terminal to verify and complete the monthly checkoff lists and the Respondent Company's main office that Pool had decided to remain on the checkoff, was still another contributing reason for Pool 's eventual termination of membership in the Respondent Union. The Respondent Company had notice, through its agent Nadine Halstead, prior to October 1957, that Pool wished to continue on the checkoff. Under such circumstances , the Respondent Company's acceptance of the Respondent Union's statement on the October 1957 checkoff list and the lists submitted by the Respondent Union thereafter that Pool was no longer on the checkoff was unjustifiable . Another fact which should have given the Respondent Company grounds for believing that the Respondent Union's request to discharge Pool under the contract was improper is the statement made by Shop Steward Edward Rimkus to Terminal Manager McCaslin on January 17, 1958, that Pool had tendered his November and December dues to Business Agent Robbins and that Robbins had accepted the tender . Certainly after receiving this information the Respondent Company was bound to inquire from the Respondent Union why it was still insisting on Pool's discharge under the contract. Under all these circumstances I hold that the Respondent Company had very little left on which it could base its belief that the Respondent Union's insistence upon Pool's discharge was proper. See Pacific Transport Lines, Inc., 119 NLRB 1505. Another fact which should have given the Respondent Company ground for believing that the Respondent Union 's request to discharge Pool under the contract was improper was the departure of the Respondent Union from its general policy and practice of not requesting the permanent discharge of an employee who was suspended from membership for failure to pay his dues on time . For many years the Respondent Union had an arrangement with the Respondent Company whereby such suspended members were temporarily taken off the work assignment list at the terminal until they reinstated themselves to good -standing membership, and that upon such reinstatement they were again given their usual work assignments without loss of seniority under the contract . This departure from the usual practice of the Respondent Union of not requesting the permanent discharge of employees who had lost good-standing membership for failure to pay dues on time should have given the Respondent Company ground to believe that the Respondent Union was dis- criminating against Pool in his privilege of reinstating himself to good standing without suffering loss of his employment seniority rights under the contract. PRODUCERS TRANSPORT, INC. 107.7 In view of the foregoing, I find and conclude that the Respondent Company vio- lated Section 8(a)(1) and (3) of the Act when it discharged Pool on January 20, 1958. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondents engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It will be recommended that the Respondent Company offer Robert W. Pool immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges; and that the Respondent Union notify the Respondent Company in writing, and furnish a copy to Pool, that it has withdrawn its objections to the employment of Pool by the Respondent Company and requests the Respondent Company to reinstate him. Since it has been found that the Respondent Union and Respondent Company are both responsible for the discrimination suffered by Pool, it will be recommended that they jointly and severally make Pool whole for the loss of pay he may have suffered by reason of the discrimination against him, by payment to Pool of a sum of money equal to that which he normally would have earned as wages from Janu- ary 20, 1958, to the date of the Respondent Company's offer of reinstatement, less his net earnings during said period.17 Provided, however, that the Respondent Union's liability shall be tolled 5 days after it serves written notice on the Respondent Company of its withdrawal of objections to Pool's employment and its request for Pool's reinstatement. Loss of pay for the foregoing purposes shall be computed on the basis of each separate calendar quarter or portion thereof during the period of the Respondents' liability. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Pool would have normally earned for each such quarter or portion thereof, his net earnings, if any, in any other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter.18 It will also be recommended that the Respondent Company, on reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as backpay. Upon 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 Union, Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By causing the Respondent Company to discriminate against Robert W. Pool, an employee with respect to whom membership was terminated and denied by the Respondent Union because of some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Robert W. Pool at the demand of the Respondent Union under a contract making member- ship a condition of continued employment but with reasonable grounds for believing that Pool's membership in the Respondent Union was being terminated and denied on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership and that the Respondent Union was not making new membership in the Respondent Union 17 Crossett Lumber Company, 8 NLRB 440. ze F. W. Woolworth Company, 90 NLRB 289. 535'828-60-vol. 125-69 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available to Pool on the same terms and conditions generally applicable to other members, the Respondent Company has unlawfully encouraged and is unlawfully encouraging membership in the Respondent Union and has committed and is com- mitting unfair labor practices within the meaning of Section 8 ( a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] United Hatters, Cap & Millinery Workers International Union, AFL-CIO and E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz, doing business as Louisville Cap Company United Hatters, Cap & Millinery Workers International Union, AFL-CIO (Kling Company) and E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz, doing business as Louisville Cap Company. Cases Nos. 9-CB-516 and 9-CC-160. December 23, 1959 DECISION AND ORDER On June 22, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceedings, 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 Intermediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 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 Intermediate Report, the exceptions and briefs,.and the entire record in these cases, and hereby adopts the findings,2 conclusions, and rec- ommendations of the Trial Examiner, with the modifications, addi- tions, and exceptions indicated below. 1 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with these cases to a three-member panel [ Chairman Leedom and Members Bean and Jenkins]. 2 We correct the following nonmaterial inaccuracies in the Intermediate Report: (a) The Board 's Decision and Direction of Election in Case No . 9-RM-159 (unpublished) was issued December 9, 1957 , and contains the language quoted under section B of the Intermediate Report. The Supplemental Decision and Certification of Results of Election (120 NLRB 769 ) was issued May 15 , 1958; (b) the union representative who spoke to William R. Caraway on September 23, 1958, was stipulated by the parties to have been Gillespie ; (c) the union representative who called upon Alvin Wood was identified in the record as Gillespie ; ( d) Henry Cooper, erroneously described as an employee of Kling in the Trial Examiner 's recital of the Respondent's attempts to organize Kling's employees , was in fact an employee of Louisville Cap and is so described elsewhere in the Intermediate Report. !125 NLRB No. 117.