Nordberg-Selah Fruit, Inc.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summary, the Trial Examiner is of the opinion that the preponderance of credible evidence sustains the allegations of the complaint . He therefore concludes and finds that by the above-described picketing at the reservoir when none of Hunter's employees were working there or nearby , but when Buettner's employees were engaged in performing work for Buettner , and by the above-described remarks of Business Representative Justi to Buettner's employees , on April 24, 1959, the Respondent Union encouraged and induced Buettner 's employees to engage in con- certed refusals in the course of their employment to perform any services, an object thereof being to require Buettner to cease doing business with Hunter.2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above , occurring in connection with the operations of the employer described 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in activities violative of Section 8 (b)((4)(A) of the Act, the Trial Examiner will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Delbert Hunter, an employer, is engaged in commerce within the meaning of the Act. 2. Local 35, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the U.S. & Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Richard E. Buettner , an employer, to engage in a concerted refusal in the course of their employment to perform services for said employer, with an object of requiring Buettner to cease doing business with Delbert Hunter, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)-(4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. [Recommendations omitted from publication I 2 Readhy Msxe4 Concrete Company, 117 NLRB 1266. Nordberg-Selah Fruit, Inc., Nordberg-Westbrook Fruit, Inc. and Fruit and Vegetable Packers Union Local 760 and Lila Abhold and Tree Fruits Labor Relations Committee , Inc., Party to the Contract. Cases Nos. 19-CA-1567 and 19-CB-520. Febru- ary 19, 1960 DECISION AND ORDER On May 8, 1959, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- 126 NLRB No. 89. NORDBERG-SELAH FRUIT, INC., ETC. 715 ents and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs.' 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 In- termediate Report,2 the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as indicated below.' 1. The Trial Examiner found that the Company violated Section 8(a) (3) and (1) of the Act, and the Union violated Section 8(b) (2) and (1) (A) of the Act by maintaining in effect certain provisions in the union-security section of the September 11, 1957, memorandum agreement, to which they were parties during the period covered by the complaint, providing that : Any employee who signed an application for membership in the Union on or after January 18, 1945, shall be considered a mem- ber of the Union, and shall be required to pay the balance of his initiation fees and all dues which accrue after signing of this agreement as a condition of employment. We agree with the Trial Examiner that the foregoing provision is unlawful; however, unlike the Trial Examiner, we rely solely upon (1) the lack of any provision in the agreement exempting from this requirement employees who had once signed an application for union membership, but who had revoked it before becoming subject to this provision, and (2) contrary to the Trial Examiner, the requirement that applicants hired after the execution of the contract pay retro- active dues. Thus, as indicated by the Trial Examiner, the union- security provisions now in question would require current employees who may have signed an application for membership in the Union to perfect and maintain membership in the Union without any grace period, even though they may have revoked their application prior to their employment in the contract unit. Moreover, contrary to the Trial Examiner, we find that this union-security provision is illegal because it requires employees subject to its terms who were hired after 1 The Respondent Company also requested oral argument . This request is hereby denied as the record, including the exceptions and briefs , adequately presents the issues and the positions of the parties 'The Union excepts to the Trial Examiner 's commingling findings of fact, conclusions of law, and arguments Section 8 (b) (6) of the Administrative Procedure Act (5 U.S.C. Sec. 1001, et seq ) requires only that a recommended decision include a statement of "findings and conclusions, as well as the reasons or basis therefor ," upon all issues. We are satisfied that the Intermediate Report complies with this requirement . Washington- Oregon Shingle Weavers' District Council, et at (Sound Shingle Co ), 101 NLRB 1159 However, we agree with the Union that the Intermediate Report is unnecessarily lengthy, and that it would have been preferable had the Examiner set forth the findings of fact in a more concise and orderly manner. ' Member Jenkins agrees with his colleagues that the Trial Examiner's recommended order should be modified as hereinafter set forth, but otherwise would adopt the findings, conclusions, and recommendations of the Trial Examiner. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the execution date to pay dues retroactively for a period of time during which they were not employed in the unit.' In these circum- stances, we find it unnecessary to consider the other reasons advanced by the Trial Examiner for finding the memorandum agreement illegal. As we have found that this clause of the 1957 memorandum agreement was illegal, we also find, in agreement with the Trial Examiner, that Abhold's discharge pursuant thereto was unlawful. 2. The Trial Examiner further found that the Respondents also violated Section 8(a) (1) and (3) and 8('b) (1) (A) and (2) of the Act, respectively, by executing and maintaining the March 28, 1958, contract containing a provision pertaining to applicants which, he found, was illegal because retroactive to September 11, 1957, thus depriving certain employees of their right to defer union membership until the 30th day after the agreement's execution date. Conse- quently, he found that the Union's attempt, on April 30, 1958, to cause Abhold's discharge pursuant to this provision also violated Section 8(b) (2). In their exceptions the Respondents contend that the Gen- eral Counsel never advanced any contention at the hearing that the 1958 contract was illegal because retroactive,' and further, that if such a contention had been made they would have submitted evidence which would have shown (1) that by using the words "effective date" the parties intended to mean March 28, 1958, when the contract was executed, and (2) that, in accord with their intention, every employee who has been subject to the clause, if any, has been afforded the 30- day grace period provided by statute. We agree with the Trial Examiner's conclusion that the Respondent Company and the Respondent Union, respectively, violated Section 8(a) (1) and 8(b) (1) (A) of the Act by making their March 28, 1958, contract retroactive on its face to September 11, 1957, notwithstanding the fact that they may not have intended to, nor did in fact, enforce its retroactive features. As the Board stated in the Port Chester Elec- trical Construction Corporation case,6 "Such an unlawful provision serves no less as a restraint on employees' right to refrain from joining an organization than if the parties intend to enforce it. . . ." How- ever, as the record shows that the question of retroactivity was not effectively raised or litigated at the hearing, and that the Respondents were, therefore, in effect, foreclosed from showing that the contract was not retroactively applied, we find, contrary to the Trial Examiner, that the record fails to establish that the retroactive feature of the * N.L.R.B. v. Eclipse Lumber Co. Inc., et al., 199 F 2d 684 (C .A. 9), enfg. 95 NLRB 464. s The General Counsel's contention at the hearing was that the 1958 contract was illegal primarily because, by the terms thereof, the parties imposed somewhat different obligations upon different classes of employees . We agree with the Trial Examiner that this contention is without merit. 69T NLRB 354, 355. See also Jandel Furs, et al., 100 NLRB 1390, and cases cited therein. NORDBERG-SELAH FRUIT, INC., ETC. 717 contract was also violative of Section 8(a) (3) and 8(b) (2) of the Act.' 3. In view of his finding that the Union's request for Abhold's dis- charge was illegal because the 1958 contract was itself illegal, the Trial Examiner, in finding 8(b) (2), found it unnecessary to determine whether or not Abhold was, in fact, required under the contract to join the Union because she had "applied for membership" therein e However, as we have differed with the Trial Examiner and have not found 8(a) (3) and 8(b) (2) in the enforcement of the retroactive feature of the contract, it becomes necessary to resolve this issue with specific reference to Abhold. As found by the Trial Examiner, Abhold signed a membership application card at a union meeting with the understanding that it would be used only for "bargaining purposes," i.e., to support a peti- tion for a Board election. In the recent Montgomery Ward case,' the Board, in rejecting the union's contention that the alleged discrim- inatee was a member of the union, noted that a union is, in law, a voluntary association and under applicable common law principles : One may become a member of an association by formally signing its articles or in any other way that shows a mutual agreement between himself and the existing members that he is a member. But membership is a question of intent and cannot be established by any fact which fails to show the existence of a mutual intent that one shall be a member of an association. In these circumstances, we find, contrary to the contention of the Respondent Union, that because of the circumstances limiting the purpose for which Abhold signed the membership application card, she did not thereby become one who had "applied for membership," as required by the contractual language. Accordingly, as Abhold was not required to become a member of the Union by April 30 under this or any other provisions of the 1958 contract, we find that the Respond- ent Union's request for her discharge on that date violated Section 8 (b) (2) of the Act. 4. The Trial Examiner found that, as the "applicants" clauses of the union-security provisions of the 1957 memorandum agreement and 9 As the retroactivity issue was neither alleged in the complaint, nor effectively raised or litigated at the hearing, Member Fanning would also not adopt the Trial Examiner's finding that the Respondent Company and Respondent Union violated Section S (a) (1) and 8(b) (1) (A ), respectively, because the 1958 contract contained a clause which on its face made the contract retroactive 8 Where pertinent , the union -security provision of the 1958 contract provides as follows : All employees , who on or after January 18 , 1945 , applied for membership in the Union, shall , as a condition of employment, become members of the Union within thirty ( 30) days following the beginning of such employment or the effective date of this contract , whichever is later, and shall, as a condition of employment , maintain their membership in the Union for the duration of this agreement. 9 Montgomery Ward & Co , Incorporated , 121 NLRB 1552, 1556. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 1958 agreement were illegal, the entire union-security provision must be characterized as invalid in the absence of any severance pos- sibilities. Accordingly, he recommended that the Respondents cease giving effect to the entire union-security provision of the 1958 con- tract.10 The Union excepts. In the Imperial Wire case," where the union-security clause afforded new employees only 6 days within which to join the union, the Board held that the basic unlawful provision affected all new employees and was so interwoven with the remaining union-security provisions that the clause must stand or fall as an entirety, and that the otherwise legal provision under which the employee was discharged could not be severed from the unlawful provision. On the other hand, the Board and the courts have found illegal union-security clauses to be severable, even in the absence of severance clauses, in cases pertaining to transfers of employees 12 or the payment of assessments.13 In the instant case, the clauses involved affect only a very limited class of employees, and do not impinge upon the other provisions which are lawful in themselves. In these circumstances we find, unlike the Trial Examiner, that these clauses are severable from the remainder of the union-security provisions of the contracts, and we shall therefore set aside only the specific unlawful provision. 5. The Trial Examiner recommended that the Board invoke its Brown-Olds 14 remedy, requiring disgorgement of dues and fees paid by employees to a union by virtue of an illegal union-security contract. The Respondents contend that the instant case is not a proper one for the Brown-Olds remedy because the union-security clauses found to be illegal do not create closed-shop or preferential hiring conditions usually found in cases where Brown-Olds was invoked. In the Brown-Olds precedent, there was a bald closed-shop contract that conditioned employment of all employees upon union membership without the benefit of the 30-day grace period required by the proviso to Section 8 (a) (3) of the Act. It thus constituted a flagrant viola- 1o As the memorandum agreement had expired , the Trial Examiner made no such recommendation with respect thereto 11 Imperial Wire Company, Inc., 118 NLRB 775, 778 , in which the Board stated "the requirement that new employees join the Union-found unlawful here because such employees were given only 6 days-Is basic to the whole scheme of a union-shop contract; without it, a principal purpose of such contract cannot be achieved ." See also Broderick Wood Prodnccts Company, et at, 118 NLRB 38, enfd . 261 F. 2d 548 (C.A 10). 121n Sinclair Refining Company (Wood River Refinery), 115 NLRB 380, the Board found that the illegal transfer clause was severable from the remainder of the contract since it did not vitiate the otherwise valid union-security provisions under which the alleged discriminatee was discharged 19 In N L.R.B. v. International Association of Machinists et at (Convair , a Dwision of General Dynanncs Corp ), 241 F 2d'695 (C.A. 9), the court of appeals held that a provi- sion in a collective -bargaining contract for discharge of union members for failure to pay union assessments , though invalid under the Act, did not invalidate a provision in the contract for discharge of union members for failure to pay union dues, since the two provisions were different and separable 14 J 8 Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594. NORDBERG-SELAH FRUIT, INC., ETC. 719 tion in open defiance of statutory policy. On the other hand, as here- inabove set forth, the union-security clauses involved herein affect only a limited class of employees and are illegal only because some employees are by the terms thereof not afforded the full 30-day grace period required by the proviso to Section 8 (a) (3) ; these clauses do not, however, in any way grant to the Union control over the hiring of employees. In these circumstances we do not believe that imposi- tion of the Brown-Olds remedy is warranted, and we ^shall therefore not adopt his recommendation to that effect.15 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, Nordberg-Selah Fruit, Inc., and Nordberg-Westbrook Fruit, Inc., its officers, agents, successors, and assigns, shall : (1) Cease and desist from : (a) Maintaining in effect the union-security provisions of the trade agreement executed on March 28, 1958, by Tree Fruits Labor Rela- tions Committee, Inc., and Fruit and Vegetable Packers Union Local 760, pertaining to applicants for membership in the Respondent Union, or executing, enforcing, or maintaining in effect any extension, renewal, modification, or supplement of the aforesaid agreement, or any superseding agreement with the designated union or any other labor organization which contains a union-security provision not formulated in conformity with the requirements of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Encouraging membership in Fruit and Vegetable Packers Union Local 760, or any other labor organization, by the discharge of employees, or by discrimination against employees in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Interfering with, restraining, or coercing employees in any other manner in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an ^ Cf. Philadelphia Woodwork Company, 121 NLRB 1642. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : (a) Jointly and severally with the Respondent Union, make whole Lila Abhold for any loss of pay she may have suffered by reason of the discrimination practices against her, in the manner set forth in "The Remedy" section of the Intermediate Report. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecard's, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (c) Post at its places of business in the Yakima area, copies of the notice attached hereto marked "Appendix A." 18 Copies of said no- tice, to be furnished by the Regional Director for the Nineteenth Re- gion, shall, after being duly signed by the Respondent Company's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable step's shall be taken by the Respondent Com- pany to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the notice of Respondent Union attached hereto marked "Appendix B." (e) Mail to the Regional Director for the Nineteenth Region copies of the notice attached hereto marked "Appendix A" for posting by the Respondent Union in its business office and meeting hall in Yakima, Washington, in places where notices to members are cus- tomarily posted. Copies of said notice to be furnished by the Re- gional Director, shall, after being signed as provided above, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days of the date of this Order, what steps it has taken to comply therewith. B. The Respondent Union, Fruit and Vegetable Packers Union Local 760, its officers, representatives, agents, successors, and assigns, shall : 1e In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " NORDBERG-SELAH FRUIT, INC., ETC. 721 1. Cease and desist from : (a) Maintaining in effect the union-security provisions of the trade agreement executed on March 28 , 1958, by the Respondent Union and Tree Fruits Labor Relations Committee , Inc., pertaining to appli- cants for membership in the Respondent Union, or executing, enforc- ing, or maintaining in any extension , renewal, modification, or sup- plement of the aforesaid agreement, or any superseding agreement with the Committee which contains a union-security provision not formulated in conformity with the requirements of Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Causing or attempting to cause the Respondent Company, or any other employer with Tree Fruits Labor Relations Committee, Inc., affiliation, to discriminate against any employee in violation of Section 8 ( a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Restraining or coercing employees, in any other manner, in the exercise of their right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 ( a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : (a) Jointly and severally with the Respondent Company, make whole Lila Abhold for any loss of pay she may have suffered by rea- son of the discrimination practiced against her , in the manner set forth in "The Remedy" section of the Intermediate Report. (b) Send written notice to the Respondent Company that it has no objection to the current employment of Lila Abhold or to her seasonal reemployment in the future, and mail Lila Abhold a copy of the aforesaid written notice. (c) Post at its business office and meeting hall in Yakima, Wash- ington, copies of the notice attached hereto marked "Appendix B." 17 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by a representative of the labor organization , be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to members are 17 See footnote 16 554461-60-1,01 126-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customarily posted. Reasonable steps shall be taken by the Respond- ent labor organization to insure that these notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as forwarded by the Regional Director, copies of the notice attached hereto marked "Appendix A." (e) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto marked "Appendix B" to be posted by the Respondent Company at its places of business in the Yakima area, as provided above. Copies of this notice, to be furnished by the Regional Director, shall be returned to the Regional Director forth- with for appropriate disposition, after being signed by the Respond- ent Union's representative. (f) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days of the date of this Order, what steps it has taken to comply therewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT maintain in effect the union-security provisions of the current agreement between ourselves and Fruit and Vege- table Packers Union Local 760, which pertains to applicants for membership in the said labor organization, nor will we execute, enforce, or maintain in effect any union-security provisions in a trade agreement, or any extension, renewal, modification, or sup- plement of a trade agreement with that organization, unless such provisions have been formulated in conformity with the require- ments of Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AVE WILL NOT encourage membership in Fruit and Vegetable Packers Union Local 760, or any other labor organization, by the discharge of any employees, or by discrimination against employees in any other manner, in regard to their hire or tenure of employment, or any term or condition of their employment, except to the extent permitted by Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. NORDBERG-SELAH FRUIT, INC., ETC. 723 WE WILL NOT interfere with, restrain, or coerce our employees, in any other manner, in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as, authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole Lila Abhold for any loss of pay she may have suffered by reason of the discrimination practiced against her. All of our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. NORDBERG-SELAH FRUIT, INC., NORDBERG- WESTBROOK FRUIT, 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. APPENDIX B NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF NORDBERG-SELAH FRUIT, INC., NORDBERG-WESTBROOK FRUIT, INC., AND OTHER FIRMS AFFILIATED WITH TREE FRUITS LABOR RELATIONS COMMITTEE, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT maintain in effect the union-security provisions of the current agreement between ourselves and Tree Fruits Labor Relations Committee, Inc., which pertains to applicants for union membership, nor will we execute, enforce, or maintain in effect any union-security provisions in a trade agreement, or any ex- tension, renewal, modification, or supplement of a trade agree- ment with that organization which contains union-security pro- visions, unless such provisions have been formulated in con- formity with the requirements of Section 8 (a) (3) of the National 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Nordberg-Selah Fruit, Inc., Nordberg-Westbrook Fruit, Inc., or any other employer with Tree Fruits Labor Relations Committee, Inc., affiliation, to dis- criminate against any employee in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT restrain or coerce the employees of Nordberg- Selah Fruit, Inc., Nordberg-Westbrook Fruit, Inc., or any other employer with Tree Fruits Labor Relations Committee, Inc., affiliation, in any other manner, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AVE WILL make whole Lila Abhold for any loss of pay she may have suffered by reason of the discrimination practiced against her, and will notify her and Nordberg-Selah Fruit, Inc., and Nordberg-Westbrook Fruit, Inc., that we have no objection to her current employment or seasonal reemployment in the future. FRUIT AND VEGETABLE PACKERS UNION LOCAL 760, Union. 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 and an amended charge duly filed and served in the name of Lila Abhold, designated as the complainant in this report, the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director of its Nineteenth Region at Seattle , Washington , to issue a consolidated complaint and notice of hearing on August 1, 1958, under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136. Therein , Fruit and Vegetable Packers Union Local 760, designated as the Respondent Union in this report, and two affiliated enterprises , Nordberg-Selah Fruit, Inc., and Nordberg- Westbrook Fruit, Inc ., designated jointly as the Respondent Company in this report, were charged with the commission of certain unfair labor practices under Section 8(b)(1)(A) and (2) and Section 8(a)(1), (2 ), and (3 ) of the Act, respectively. Tree Fruits Labor Relations Committee , Inc.,,to be designated as Tree Fruits or the Committee herein, was designated in the consolidated complaint as a party to the contract challenged therein as illegal. Copies of the consolidated complaint and NORDBERG-SELAH FRUIT, INC., ETC. 725 notice of hearing were duly served upon the Respondent Union, the Nordberg enterprises, and other interested parties. In the consolidated complaint, the General Counsel identified the Committee as a voluntary association of employers which has functioned and functions as the representative of its member companies in collective bargaining, and which period- ically negotiates trade agreements for and on behalf of these companies with the Respondent Union herein. The Respondent Company was alleged to have become affiliated with the Committee on or about November 3, 1955, at which time it purported to become a member of the Committee by the execution of an active membership agreement; among other things, this agreement allegedly required and continues to require the Respondent Company to live up to all contracts and agree- ments negotiated by the Committee, as an employer organization. It was the General Counsel's contention that the Respondent Company, when it became affil- iated with the Committee, became bound and continued to be bound by the trade agreement in force and effect between the Respondent Union and that organization; by its terms, allegedly, the Respondent Company became obligated, inter alia, to recognize and continue to recognize the Respondent Union as the exclusive collective- bargaining representative of its employees in a described unit. It was contended that, as of the date when the Respondent Company allegedly became a committee member and assumed the obligation described, the Respondent Union had not been designated, impliedly or expressly, as the bargaining representative of a majority of its employees for the purpose of collective bargaining; nor, it was alleged, had its employees indicated, impliedly or expressly, their desire to designate the Re- spondent Union as their exclusive representative for the purpose of collective bar- gaining within the "over-all multiemployer unit" established by the agreement then in effect between the Committee, on behalf of its member employers, and the Respondent Union, on behalf of the employees within the described unit. Under the circumstances, the Respondent Union and the Respondent Company were alleged to have engaged in certain designated unfair labor practices. Additionally it was charged by the General Counsel that the Respondent Company had discharged Lila Abhold, pursuant to the Respondent Union's demand, in accordance with the union- security provision of the trade agreement then in effect between the Committee and the Respondent Union, for her failure to tender or pay initiation fees, dues, and fines accumulated since December 1954, at which time Abhold had allegedly signed a union membership application. Abhold was alleged to have been discharged on or about January 9, 1958, and reinstated on or about March 31, 1958, pursuant to a written statement by an authorized agent of the Respondent Union that she would be considered eligible for employment. On or about April 30, 1958, however, the Respondent Union allegedly demanded and continues to demand the discharge of Lila Abhold for her failure to tender or pay initiation fees, dues, and fines as previously noted, pursuant to the pertinent union-security provision of the Re- spondent Union's current agreement with the Committee herein. The conduct attributable to the Respondent Company and the Respondent Union in this con- nection was likewise challenged by the General Counsel as an unfair labor practice. In due course, each respondent filed an answer. The answer filed in behalf of the Respondent Company and the Committee raised no question with respect to the jurisdictional allegations to the consolidated complaint, but denied the General Counsel's legal conclusion that the affiliated Nordberg enterprises should be held to constitute a single employer within the meaning of the statute; while certain factual allegations of the consolidated complaint were not contested, the commission of any unfair labor practice was denied. The Respondent Union's answer included a denial of the jurisdictional allegations of the consolidated complaint; some of its factual allegations were admitted, but the labor organization denied its involvement in the commission of any unfair labor practice. Thereafter, on September 9, 1958, the General Counsel's representatives issued an amended consolidated complaint. The Committee was again characterized as an employer's association which functions as the representative of its member firms in collective bargaining, and which negotiates periodic trade agreements with the Respondent Union in their behalf. The Respondent Company was again identified as a committee member on the basis of its execution of an active membership agreement on or about November 3, 1955, which, among other things, required and requires the Respondent Company to live up to all committee-negotiated con- tracts and agreements. By virtue of its decision to become a committee member, the Respondent Company was alleged to have adopted and become bound by the collective-bargaining agreement then in effect between the Respondent Union and the Committee, by the terms of which the Respondent Union was recognized as the exclusive representative of the Respondent Company's employees, among others, 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a described unit for the purposes of a collective bargain. The trade agreement in effect as of November 3, 1955, between the Respondent Union and the Committee, for and on behalf of the Committee's member employers, the Respondent Company included, was alleged to have been superseded by a trade agreement executed September 3, 1956, which contained an illegal union-security provision. The General Counsel contended that the Respondent Company, pursuant to the Respondent Union's demand under this union-security provision, discharged Lila Abhold on or about January 9, 1958, for her failure to pay or tender initiation fees, dues, and fines accumulated since on or about December 1954, at which time she had allegedly signed a union membership application. This discharge was alleged to have re- mained in effect until on or about March 31, 1958, when the Respondent Company reinstated Abhold pursuant to a written statement by the Respondent Union's authorized agent with respect to her eligibility for employment. The amended consolidated complaint then went on to allege the execution of a new trade agree- ment on March 28, 1958, effective retroactively as of September 11, 1957, between the Respondent Union and the Committee, for and on behalf of its member em- ployers, the Respondent Company included; this agreement, likewise, is alleged to have contained an illegal union-security clause. Pursuant to its terms, allegedly, the Respondent Union demanded Abhold's discharge on or about April 30, 1958, and has continued to press such a demand. The General Counsel contended in the amended consolidated complaint, that the union-security provisions of the 1956 trade agreement, and those of the agreement which superseded it, provide a degree of union security impermissible under Section 8(a)(3) of the statute. By virtue of the Respondent Union's participation in the maintenance and effectuation of the union-security provision in the 1956 agreement, and by virtue of its execution, main- tenance, and effectuation of the union-security provision in the successor agreement, the Respondent Union is alleged to have engaged in certain designated unfair labor practices, and to be currently engaged in such practices; the Respondent Company, by virtue of its contractual privity with the Respondent Union is likewise alleged to have engaged in certain unfair labor practices and to be currently engaged in such practices. The Respondent Union's answer included a denial with respect to most of the jurisdictional allegations of the amended consolidated complaint; with respect to the rest of the allegations, the Respondent Union made certain factual admissions, but denied the commission of any unfair labor practice. The answer filed in behalf of the Committee and the affiliated Nordberg enterprises included a series of admissions with respect to their separate business activity; the General Counsel's allegation with respect to their legal status as a single employer, within the meaning of the Act as amended, was, however, denied. The involvement of Nordberg-Selah Fruit, Inc., separately considered, in commerce, was conceded; the involvement of Nordberg-Westbrook Fruit, Inc., in commerce was denied. With respect to the General Counsel's unfair labor practice allegations, certain factual matters were conceded. Admissions and denials were noted separately, with respect to other allegations, in behalf of Nordberg-Selah Fruit, Inc., and Nordberg-Westbrook Fruit, Inc., individually. Their commission of any unfair labor practice was denied. Pursuant to notice a hearing on the amended consolidated complaint was held at Yakima, Washington, on September 25 and 26, 1958. All of the parties were represented by counsel. They were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and con- clusions. At the outset of the General Counsel's presentation, a motion to amend the answer previously filed in behalf of the Respondent Company and Committee, to strike all references to the Committee as a respondent, was granted. The Respondent Union's motion to strike certain allegations of the amended consolidated complaint was denied; a motion to strike filed by the Respondent Company, similar to the one filed by the respondent labor organization, was likewise denied. A motion by the General Counsel to amend the pleadings to designate one of the Nordberg enterprises involved as Nordberg-Selah Fruit, Inc., instead of Nordberg Fruit, Inc, was granted. The amended designation, which reflects the correct name of the enterprise charged, has been used throughout this report. At the conclusion of the General Counsel's case, motions to dismiss the amended consolidated complaint were denied. Upon the completion of the testimonial presentation, the issues involved in the case were discussed briefly. Subsequently, counsel for the Respondent Company submitted a brief: it has been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: NORDBERG-SELAH FRUIT, INC., ETC . 727. FINDINGS OF FACT I. Jurisdiction A. The Respondent Company Nordberg-Selah Fruit, Inc., a Washington corporation , maintains its principal office and place of business in Selah, Washington ; it is there engaged in the business of purchasing and selling fresh fruit for out-of-State shipment. In the course and conduct of its business as described, the enterprise annually grosses in excess of $3,000,000; substantially all of this amount is derived from its product shipments to points outside of the State of Washington. Nordberg-Westbrook Fruit, Inc., a Washington corporation, likewise maintains its principal office and place of business at Selah, Washington ; there it maintains a cold storage plant, which stores and packs fruit for Nordberg-Selah Fruit, Inc., exclusively . In the course and conduct of its business, Nordberg-Westbrook Fruit, Inc., grosses in excess of $150,000 annually. These conclusions rest upon the concessions of the Nordberg enterprises in their answer, and a stipulation by the Respondent Union. The factual recital which follows, however, is based upon the testimonial record, and particularly upon the testimony of Earl Nordberg, the president of the Respond- ent firms. In 1948, Nordberg entered business as an individual , with Earl Nordberg Fruit Company as his trade name . In 1952, however, Nordberg-Westbrook Fruit, Inc., was organized and incorporated . Within 2 years, Nordberg-Selah Fruit, Inc., was also organized . At all material times, the Westbrook plant has been utilized to pack and store apples for the Selah operation only. The Westbrook enterprise has owned and maintained its own warehouse, approximately 8 miles from the Selah operation , which, however, also includes a warehouse facility. Additionally, it appears, Nordberg's Westbrook enterprise owns a ranch property; his Selah enterprise, I find, merely owns the property used in connection with its business. At the Westbrook operation, Nordberg serves as the corporate president; his wife is the vice president of the firm ; and Howard French serves as its secretary- treasurer. At the Selah operation , Nordberg also functions as president ; his wife is the firm's vice president; but Oliver Trout serves as the secretary-treasurer. At the Selah operation Nordberg is engaged in the purchase and sale of fruit, primarily; the enterprise may also pack fruit , however. The Westbrook operation, as previously noted, merely packs and stores fruit for the Selah enterprise. The Westbrook enterprise maintains no truck fleet of its own ; the Selah corpora- tion owns and operates approximately 10 to 12 trucks . When, therefore, these trucks are utilized to pick up fruit at Selah , for delivery at the Westbrook plant to be packed and stored , the Westbrook enterprise does not bill the Selah corpora- tion for transportation expenses ; it charges merely for its services in connection with the packing and storage of fruit. And no charge is made by the Selah enter- prise for Westbrook 's use of its truck facilities. Separate books are maintained by each corporation , with the aid of separate clerical staffs. The firms maintain separate payrolls and house their clerical workers in separate offices. And supplies are purchased separately for each enterprise. When the books of account of each enterprise are assembled for the perusal of auditors, however, and for tax purposes , the same clerical staff will handle both sets of books; these matters are handled at the office of the Selah corporation; that enterprise is considered responsible for the salaries of the entire staff thus engaged. The sales function is handled by the Selah corporation exclusively ; since all of the work at the Westbrook plant is done for the Selah enterprise , the Westbrook opera- tion does not require a sales organization. The Selah operation normally functions longer, each year, than the Westbrook plant; when this occurs, any shortage of help at Selah is met by the transfer of Westbrook employees. Nordberg's testimony establishes that he and his wife "probably" manage both enterprises directly, although General Manager Howard French at the Westbrook plant is authorized to exercise general supervision there. According to Nordberg, the authority of French as a supervisor extends to the establishment of labor policy at the Westbrook operation ; the witness conceded , however, that he would expect to be consulted with respect to any serious policy matters in the labor relations field. When the two Respondent enterprises sought committee membership, Nordberg signed an active membership agreement on behalf of both enterprises . And, since the execution of this agreement, Nordberg has personally maintained the relation- 728 DECISIONS OP NATIONAL LABOR RELATIONS BOARD ship between the Committee and his enterprises; to "a large extent" he has also dealt with the Respondent Union, directly, in behalf of both of his firms. Upon the entire record, I am satisfied-despite the contrary contentions of counsel-that the Selah and Westbrook corporations function, in the final analysis, as a single employer, and deserve characterization as such within the meaning of the Act, as amended. In this connection, it may be noted particularly that Earl Nordberg and his wife together own both enterprises, that they hold corporate office in both, and that they exercise the ultimate right of control with respect to the operation of both firms. The operations carned on at the plants are, in fact, thor- oughly integrated. And an interchange of employees is not only possible but quite common With respect to any question in regard to labor relations Nordberg, clearly, functions as an effective spokesman for both enterprises. The argument that these firms do not function as a single employer and do not deserve characteriza- tion as such within the meaning of the statute, must therefore be rejected. B. The Committee The organization designated as Tree Fruits Labor Relations Committee, Inc., is a voluntary association of approximately 25 employers engaged in business within the general Yakima, Washington, area; it has been in existence for more than 10 years. Upon the entire record, I find that it has functioned and functions, at least in part, as the representative of its member employers in collective bargaining. Periodically, I find, it negotiates trade agreements with the Respondent Union for and on behalf of its member companies. These agreements have covered all of the employees of its member employers, exclusive of outside salesmen, fieldmen, managers, bookkeepers, office employees, engineers, engineroom employees, watchmen, and foremen and fore- women who have authority to employ and discharge employees. C. Conclusion By virtue of its answer, previously noted, the Respondent Union intended to put the General Counsel to his proof with respect to the jurisdictional allegations of the amended consolidated complaint. The answer filed by the Respondent Company's counsel, however, included a concession with respect to the General Counsel's factual allegations in this connection; only the status of the Nordberg enterprises as a single employer for statutory purposes was denied. The answer also included a denial of the General Counsel's legal conclusion that the Westbrook operation was separately engaged in commerce within the meaning of the statute, although the in- volvement of the Selah corporation in commerce was conceded. In the light of the factual admissions and stipulations previously noted, and upon the entire record, I have already found the Nordberg enterprises to be a single employer. Upon the same evidentiary basis, I find them to be engaged in commerce and business activities which affect commerce within the meaning of the Act, as amended. And in the light of the Board's relevant jurisdictional policies-see Jonesboro Grain Drying Cooperative, 110 NLRB 481. Siemons Mailing Service, 122 NLRB 81, and related cases-I find that the assertion of the Board's jurisdiction in this case would be warranted and necessary to effectuate the statutory objectives. H. THE LABOR ORGANIZATION INVOLVED In the light of stipulations noted for the record, I find that the Fruit and Vegetable Packers Union Local 760, is a labor organization within the meaning of Section 2(5) of the Act, which admits employees of the Respondent Company to membership. III. THE UNFAIR LABOR PRACTICES A. The issues In their present posture, these cases derive directly from Lila Abhold's contention that the Respondent Company discharged her on or about the date previously noted- pursuant to a demand made by the Respondent Union under the provisions of the union-security clause in the Tree Fruits agreement then in force-because of her failure to pay or tender initiation fees, dues, and fines required or levied by the Union after December 1954, at which time she had allegedly signed a union membership application. In her charges filed, the complainant had merely referred to her January dis- charge by the Respondent Company at the Union's insistence "because" she was not then a union member. The General Counsel, however, has advanced two related contentions on the basis of the charges. It is his basic contention, simply stated, that the execution, maintenance, and effectuation of the agreements relied upon to NORDBERG-SELAH FRUIT, INC., ETC. 729 sustain the validity of Abhold's discharge and the Respondent Union's renewed re- quest for such action after her reinstatement independently involved the Respond- ent labor organization and the Respondent Employer in the commission of unfair labor practices. And with respect to the complainant's situation it is the General Counsel's contention that the Respondent Company's discharge action of January 9, 1958, pursuant to the Respondent Union's request, and the labor organization's subsequent renewal of its discharge request after her reinstatement, involved these respondents in the commission of unfair labor practices simply because the union- security provisions relied upon by each respondent to justify its actions were illegal under the statute. At the close of the testimonial presentation in this case, however, the General Counsel's representative outlined his contentions with respect to the propriety of Abhold's discharge, as follows: Lila Abhold never signed an application for membership. If she signed an application for membership the discharge was nevertheless invalid because the clauses were invalid. The clauses were invalid for a number of reasons which [we] have already discussed. The reasons why Lila Abhold never signed an application for membership are in the record. . . . Further we don't consider the so-called savings clause in the union security provision . . . to be sufficient. Each of these contentions must be considered. Since a determination with respect to the propriety of each union-security provision challenged by the General Coun- sel's representative could, however, conceivably dispose of any contention that the treatment afforded the complainant by the respondents was proper, logic suggests that the contentions of the General Counsel in this connection deserve initial attention. B. The trade agreements On September 3, 1956, a trade agreement between the Respondent Union and the Tree Fruits Labor Relations Committee, Inc., a membership corporation, was executed. By its terms, the agreement in question covered all of the employees of the committee members "performing work on any product or commodity" in various packing plants and warehouses located in three designated Washington counties, exclusive of employees in certain job classifications. The contract, concededly, was negotiated to replace a prior 1955 document. It became effective as of the date of its execution, and included a provision that it was to remain in force and effect until May 15, 1957, and from year to year thereafter, in the absence of written notice by either party, on or before February 25 of each year, of a desire that it be amended or terminated. The termination clause of the agreement, I find, contained a further provision that if not terminated, it would remain in full force and effect after notice until the execution of a new agreement. If an agreement could not be reached by May 15 of any year or thereafter, the contract provided that either party would be free to terminate the effectiveness of the document, in its entirety, upon giving 30 days' written notice. The agreement also included a detailed provision with respect to union security. Essentially, I find, it provided for maintenance of membership by certain designated groups of employees. It read as follows: Section 7-Union Security All employees who have at any time become members of the Union, regard- less of date of membership, shall, as a condition of employment, maintain their membership in the Union in good standing for the duration of this Agreement. Any employee who signed an application for membership in the Union on or after January 18, 1945, shall be considered a member of the Union, and shall be required to pay the balance of his initiation fees and all dues which accrue after signing of this agreement, as a condition of employment. Any employee who hereafter signs an application for membership in the Union shall be considered a member of the Union and shall complete his membership and maintain same thereafter as a condition of employment. If a dispute arises as to whether an employee has failed to complete or main- tain his membership in the Union in good standing, such dispute shall be submitted for determination to the secretary of the Union and a representative of the Tree Fruits, (and the disputing employee may remain in employment until a final decision is reached.) In any such dispute a certified copy of an application for membership in the Union executed on or after January 18, 1945, will be accepted by the Company as prima facie evidence. In case of a Union grievance arising under maintenance of membership re- quirements the employee shall have not to exceed ten (10) days in which to 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute the validity of the Union's demand for discharge under this clause; and shall submit as promptly as possible, evidence in support thereof. Failure on the part of the employee to submit such evidence within the ten (10) day period above provided shall constitute sufficient reason for the Company to comply with the Union's request for discharge. It is further agreed that the employer shall not be required to discharge an employee, if to do so would be in violation of any state or Federal law. This agreement was reopened for amendment on or before February 25, 1957, pur- suant to appropriate notice. No new agreement was reached prior to May 15, 1957, however. And, pursuant to further notice, the agreement was terminated on Sep- tember 2, 1957, under the terms of its termination clause, previously noted. A period of intensive negotiation followed And on September 6, 1957, the negotiators executed a "Memorandum of Understanding" which they submitted to their principals for approval. Upon its acceptance by both parties, on or before the 11th of the month, the agreement embodied in the memorandum was put into effect. In general, it provided that the "current contract" would be continued with certain changes effective immediately. The union-security provisions of the 1956-57 agreement were among those modified. In the memorandum these modifications were set forth as follows: UNION SECURITY: 1. Retain present Union Security Clause. 2. Growers, and immediate members of their families, not covered by (1) above, doing business with a member of the Company, shall have the right to be employed by any member of the Company and to continue in employment without obligation to become a member of the Union. 3. All present employees, including those seasonally laid off and those now on leave of absence, of any member of the Company not covered by (1) or (2) above who have been employed by any member of the Company prior to January 1, 1955, may continue to be employed by that member of the Company without obligation to become a member of the Union. 4. All present employees, including those seasonally laid off and those now on leave of absence, of any member of the Company not covered by (1), (2) or (3) above shall, after May 15, 1958, after forty-five days of employment (days actually worked) (excluding June or July) for any member or members of the Company in one season beginning August 1, 1957, and August 1 of each year thereafter, shall be obligated to become a member of the Union and to maintain their membership thereafter as a condition of employment. 5. All employees not covered by (1), (2), (3) or (4) above shall after forty- five days of employment (days actually worked) (excluding June and July) for any member or members of the Company in one season beginning August 1, 1957, and August 1 of each year thereafter shall be obligated to become a mem- ber of the Union and to maintain their membership thereafter as a condition of employment. When questioned as to the significance of the "Memorandum of Understanding" James Farrington, the secretary-treasurer of the Union and its principal negotiator, initially testified-without contradiction-that his organization did not consider the document a collective-bargaining agreement, and intended to formalize the under- standing it evidenced in a regular trade agreement to be executed thereafter. Con- sistently, at the outset of his testimony in cross-examination, Farrington insisted that no collective-bargaining contract was actually in effect between the Respondent Union and the Committee, on behalf of its member employers, between September 2, 1957, and March 28, 1958, when a trade agreement, to be noted, was signed. Later, however, in the course of redirect examination, Farrington testified that "some type of an agreement" was considered to be viable between September 11, 1957, and March 28, 1958, the effective period of the memorandum now under considera- tion. He described this agreement as a new one, in which the expired 1956-57 agreement had been incorporated by reference; this agreement, according to Farring- ton, had been revived and given immediate effect by the memorandum, as supple- mented and modified by that document I so find. On March 28. 1958, the Respondent Union and the Committee executed a com- pletely integrated trade agreement, effective retroactively to the September 11, 1957, memorandum date. With respect to union security, its provisions were somewhat at variance from those negotiated in the Memorandum of Understanding; in pertinent part, they read as follows: NORDBERG-SELAH FRUIT, INC., ETC. 731 Section 7. Union Security: (a) All employees who are now members of the Union, shall, as a condition of employment, maintain their membership in the Union for the duration of this Agreement. All employees, who on or after January 18, 1945, applied for membership in the Union, shall, as a condition of employment, become members of the Union within thirty (30) days following the beginning of such employment or the effective date of this Contract, whichever is later, and shall, as a condi- tion of employment, maintain their membership in the Union for the duration of this Agreement. (b) Growers, (anyone operating an orchard containing four acres or more of fruit trees) and immediate members of their families not covered by (a) above, doing business with a member of the Company, shall have the right to be employed by any member of the Company and to continue in employment without obligation to become a member of the Union. (It is not the intent of this provision to exclude growers making only token shipments to a member of the Company). (c) All present employees, including those seasonally laid off and those now on leave of absence, of any member of the Company not covered by (a) or (b) above who have been employed by any member of the Company prior to January 1, 1955, may continue to be employed by that member of the Company without obligation to become a member of the Union (d) All present employees, including those seasonally laid off and those now on leave of absence, of any member of the Company, not covered by (a), (b) or (c) above, may be employed by that member of the Company for the balance of the current season to May 15, 1958, without obligation to become a member of the Union. Such employees, after 45 days of employment (days on which work is performed by said employee) (excluding June and July) for any member or members of the Company in one season beginning August 1, 1958, and August 1 of each year thereafter, shall be obligated to become a member of the Union and to maintain their membership thereafter as a condi- tion of employment. (e) All new employees not covered by (a), (b), (c), or (d) above shall after forty-five (45) days of employment (days on which work is performed by said employee) (excluding June and July) for any member or members of the Company in one season beginning August 1, 1957, and August 1 of each year thereafter shall be obligated to become a member of the Union and to main- tain their membership thereafter as a condition of employment. (f) If a dispute arises as to whether an employee has failed to complete or maintain his membership in the Union in good standing, such dispute shall be submitted for determination to the Secretary of the Union and a representative of the Tree Fruits (and the disputing employee may remain in employment until a final decision is reached). In any such dispute a certified copy of an application for membership in the Union executed on or after January 18, 1945, will be accepted by the Company as prima facie evidence. (g) In case of a Union grievance arising under maintenance of membership requirements, the employee shall have not to exceed ten (10 ) days in which to dispute the validity of the Union's demand for discharge under this clause: and shall submit as promptly as possible evidence in support thereof. Failure on the part of the employee to submit such evidence within the ten (10) day period above provided shall constitute sufficient reason for the Company to comply with the Union's request for discharge. It is further agreed that the employer shall not be required to discharge any employee, if to do so would be in violation of any state or Federal Law. C. Conclusions 1. Preliminary motions At the outset of this consolidated proceeding , as previously noted, motions to strike certain allegations of the amended consolidated complaint were presented in behalf of each respondent . Essentially, these motions presented an issue as to whether the designated allegations of the amended consolidated complaint ought to be stricken on the ground that they were not based upon the charges or amended charge filed . After due consideration , these motions were denied. My disposition of the issue raised is hereby reaffirmed. It was the Respondent Union 's contention, substantially , that the only recitals em- bodied in the amended consolidated complaint which are based upon Abhold's 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD original charge against it are the recitals with respect to her January 9, 1958, dis- charge And the Respondent labor organization argued, therefore, that the conten- tions of the General Counsel with respect to: (1) The maintenance and effectuation of the union-security clauses in the 1956-1957 trade agreement between it and the Committee, previously noted; (2) the execution, maintenance, and effectuation of the union-security provision in the March 28, 1958, trade agreement between the parties with a September 11, 1957, retroactive date; and (3) the renewed demand allegedly made by the Respondent Union, on or about April 30, 1958, that the complainant be discharged; cannot be considered based upon the charge filed. The General Counsel's references to the execution of an agreement on March 28, 1958, and to the Respondent Union's alleged request for Abhold's discharge on April 30, 1958, are characterized, also, as recitals with respect to events which occurred after the filing of the charge in question. The Respondent Company's motion that certain designated allegations of the amended consolidated complaint be stricken presents a substantially similar issue. In the light of established Board policy, which has received judicial approval, these motions have been rejected as deficient in merit. Each of the respondents argues, essentially, that the authority of this Agency with respect to the issuance of com- plaints derives from Section 10(b) of the statute, and that the Agency may act effectively only when the statutory procedure is substantially followed. Specifically, it is contended that every complaint must be predicated upon a charge; that the charge must embody a recital of fact sufficient to warrant a conclusion that some unfair labor practice has been committed; and that the facts recited must be predi- cated upon action already taken. N.L.R.B. v. Fant Milling Company, 258 F. 2d 851 (C.A. 5), Board pet. for cert. filed October 28, 1958. Under the circumstances of this consolidated case, however, the argument must be dismissed as irrelevant. Without regard to the validity of the statutory interpretation suggested by the Court of Appeals for the Fifth Circuit in the cited case, it should be noted that the court merely intended to affirm that a charge would be considered sufficient to support a complaint only if its factual recital could be considered sufficient to warrant a conclusion that some unfair labor practice, statutorily defined, had already been committed. The court did not purport to decide whether a complaint, predicated upon a valid and sufficient charge, could legitimately be expanded to allege the commission of related unfair labor practices, before or after the date of the original charge in the case. The case law with respect to the latter issue is well settled. It may be said to rest, essentially, upon judicial appreciation of the Agency-defined relationship be- tween a charge and a complaint. A charge is not a pleading; it simply sets in motion the Board's investigative machinery, and serves its purpose when the Board's in- vestigation is begun. N.L.R.B. v. Waterfront Employers Association of Washington, et al, 211 F. 2d 946 (C.A. 9), enfg. 98 NLRB 284, 101 NLRB 770. After the Board has completed its investigation of the charge its complaint is issued; only then are the precise issues in the case defined. The charge, concededly, does serve another function; it informs the party charged with respect to the general nature of the complainant's grievance. (The requirement embodied in Section 10(b) of the statute that the charge be filed within 6 months after the occurrence of any event alleged to involve the commission of an unfair labor practice was thus designed to protect alleged violators of the statute against stale claims, and give them an opportunity to prepare their defenses.) Since these are the only functions of the charge, however, and since charges must often be prepared by persons without a knowledge of pleading or law, the courts have recognized the Board's power to issue a complaint which embodies factual allegations reflective of the facts it may have unearthed in the course of its investigation of a timely charge, even though the facts in question may not have been mentioned specifically therein. This power of the Board is limited in one respect only; the new matter, if incorporated in the complaint more than 6 months after the occurrence of the events recited, must not be so dissociated or remote from the allegations of the charge as to prejudice the party charged in the preparation of his case. N.L.R B. v. Waterfront Employers Association of Washington, et al., supra; N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719 (C.A. 2), affd. sub nom. Radio Officers' Union, et al., AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U S. 17; Cusano d/b/a American Shuffleboard Co. v. N.L.R.B., 190 F. 2d 898 (C.A. 3). As the Respondent Union has noted, Section 10(b) of the statute establishes the Board's power, whenever it is charged that any person has engaged in or is engaging in an unfair labor practice, to issue and cause to be served upon such person a complaint stating the charges in that respect. Recently, this statutory provision has been analyzed, judicially, in terms applicable here. Douds v. International Long- NORDBERG-SELAH FRUIT, INC., ETC. 733 shoremen's Association, et al., 241 F. 2d 278 (C.A. 2). In this case the Court of Appeals for the Second Circuit observed as follows: we turn to the question whether a complaint, by stating facts subsequent to the filing of a "charge" valid on its face, . satisfies the statutory limitation that the Board issue "a complaint stating the charges in that respect." We think it does. The complaint, much like a pleading in a proceeding before a court, is designed to notify the adverse party of the claims that are to be adjudicated so that he may prepare his case, and to set a standard of relevance which shall govern the proceedings at the hearing. . The "charge" has a lesser function. It is not designed to give notice to the person complained of or to limit the hearings or to restrict the scope of the final order. It serves in limine the function of drawing the Board's attention to a cause for economic disturbance, not abstractly or in an area not within the jurisdiction of the Board, but by alleging that some person has engaged in or is engaging in one of the unfair labor practices defined in Sections 8(a) and (b) of the Act. This done, the only relation required between the "charge" and the "complaint" is that the complaint deal with "the same class of viola- tions as those set up in the charge and [be] continuations of them in pursuance of the same objects." National Licorice Co. v. N.L.R.B., 309 U.S. 350, 369, .. . In short the "charge" must allege the unfair labor practice to invoke the jurisdiction of the Board; and, by way of limitation, the complaint issued by the Board must deal with the same subject matter and sequence of events, N.L.R.B. v. National Licorice Co., 2 Cir., 104 F. 2d 655, 658, although the specific events stated in the complaint may precede or follow those stated in the "charge." The cases may be understood in terms of this distinction. The courts and the Board have required that the "charge" allege an unfair labor practice. . These cases indicate that the statutory phrase "Whenever it is charged that any person has engaged in or is engaging in any [Section 8] unfair labor practice" means that no complaint may issue if, when all the facts alleged are assumed to be true, they would not constitute an unfair labor practice. These considerations would appear to be applicable in the present consolidated matter. The Respondents do not allege that Abhold's charges fail to recite facts which, when assumed to be true, would reflect the commission of an unfair labor practice. And the allegations set forth in her charges necessarily raise an issue, under the statute, as to the legality of the contractual provision under which the Respondent Union and the Respondent Company purported to act. The recitals embodied in the complaint, with respect to the legality of the union-security provi- sion in the agreement subsequently executed by the Committee and the labor organi- zation, and the legality of the organization's renewed demand for Abhold's discharge thereunder, thus deal with "the same class of violations as those set up in the charge" and allege, essentially, a continuation of the antecedent unfair labor prac- tices charged, in pursuit of the same objectives. For these reasons, my determina- tion to deny the motions to strike with respect to certain designated allegations of the amended consolidated complaint is reaffirmed. 2. The statutory proviso It is the General Counsel's contention, inter alia, that the maintenance and effec- tuation of the union-security clause in the 1956-1957 agreement between the Respondent Union and the Committee, in behalf of its member enterprises, involved the commission of an unfair labor practice by each of the Respondents designated. The available evidence establishes, however, that the agreement which the Respond- ent Union and the Committee executed on September 3, 1956, was terminated on September 2, 1957, upon appropriate notice pursuant to its terms. It has not been in effect since that date. The complainant's original charges against the Respondent Union and the Nordberg enterprise, however, were filed on March 3, 1958, 1 day after the expiration of the 6-month period which followed the termination of the agreement now under consideration. Under the circumstances I find merit in the Respondent Union's contention that the Section 10(b) proviso-". . . that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . ." requires the dis- missal of any allegation with respect to the illegality of the 1956-1957 agreement. And despite the Respondent Company's failure to advance a similar contention, the same action with respect to the General Counsel's contention that its maintenance 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and effectuation of the union-security provisions of the challenged agreement involved an unfair labor practice would seem to be warranted. The issue posed with respect to the legality of the union-secunty provision embodied in the agreement has not been eliminated from the present consolidated matter, however. In the light of the testimony provided by the Respondent Union's secretary-treasurer with respect to the revival of the 1956-1957 union-security provision, supplemented and modified, upon the execution of the September 11, 1957, Memorandum of Understanding, previously noted, the General Counsel's contention that the clause is subject to administrative proscription, still, cannot be disregarded. To a consideration of the issues posed in that connection, then, this report must now turn. 3. The legality of the membership maintenance clauses a. The Memorandum of Understanding (1) First paragraph In the course of his brief oral argument, at the close of the testimony, the General Counsel's representative characterized the first paragraph of the union-secunty clause in the 1956-1957 agreement-which the Memorandum of Understanding expressly revived-as a "traditional" maintenance-of-membership provision. With respect to this paragraph, no contention of illegality was advanced. And, as a result, I have made no attempt to articulate conclusions with respect to the validity of the membership maintenance requirement set forth in the designated contractual language. It should be noted, in this connection, that the paragraph of the union-security provision now in question does require maintenance-of-membership in good stand- ing by all covered employees who may have "at any time" become union members, regardless of the effective dates of their membership. In the light of this con- tractual language, it would certainly seem to be arguable, at least, that the parties intended to require the maintenance of perfected union membership in good standing on the part of any employee with a record of such membership in the past- (a) without regard to the fact that such an employee may have perfected his mem- bership in the respondent labor organization, previously, while in the employ of an enterprise not associated with the Committee and not privy to its agreements; (b) without regard to the fact that such an employee, after becoming a union member in good standing while in the employ of a firm privy to a committee agreement, may have suffered a break in service-other than a seasonal layoff or leave of absence-within the multiple-employer contract unit prior to his current employ- ment; and (c) without regard to the fact that his membership in the Respondent labor organization may have been suspended or terminated for various reasons after his achievement of "good standing" status and prior to the effective date of any employment relationship governed by the Memorandum of Understanding now in issue No evidence has been adduced, however, to establish that the union-security requirement embodied in the first paragraph of the provision now under considera- tion has even been enforced with respect to the employment of any covered employee, under the circumstances indicated. The legality of its application under these cir- cumstances, therefore, is not challenged in these cases. And in the absence of any express contention by the General Counsel that the specific language in question ought to be considered illegal, per se, because of the possibilities implicit therein, no issues with respect to its propriety seem to be presented for disposition. (2) The classification of employees generally The contentions of the General Counsel, however, do raise a substantial question with respect to the legality of the second paragraph of the 1956-57 union-secunty clause, as revived in the Memorandum of Understanding and modified. At the outset, the contractual language is challenged as expressive of discrimina- tion, reasonably calculated to encourage union membership, merely because of its apparent intent to impose an obligation with respect to the perfection and main- tenance of such membership upon a certain class of employees-applicants for union membership on January 18, 1945, or thereafter-absent any attempt to impose such a requirement upon other classes of employees. In its total context, the contractual language challenged by the General Counsel appears to be closely related to the language in the first paragraph of the union- security provision. which he has not attacked In that paragraph, of course, reference is made to the maintenance-of-membership obligation of employees who may have become union members "at any time" regardless of the effective date of their mem- NORDBERG-SELAH FRUIT, INC., ETC. 735 bership. And the language now challenged as violative of the statue defines em- ployees shown to have signed a union membership applicaiton on or after January 18, 1945, as union members, required to pay any balances due on their initiation fees, and to meet all of their dues obligations which may have accrued after the execution of the memorandum agreement as a condition of employment; at the same time employees who may never have signed a membership application or achieved union membership in good standing are presumptively absolved of any requirement in this connection. (By its terms, the memorandum now in issue re- vived and effectuated a provision of the 1956-57 trade agreement which required any employee who might sign a membership application after the agreement's execution to complete his membership, and to maintain it as a condition of employ- ment. This provision has not been questioned by the General Counsel, directly or collaterally.) In support of his ultimate contention that the cotractual language noted deserves characterization as violative of the statute, the General Counsel has presented a syllogistic argument based upon certain major premises. He asserts, at the outset, that the Section 8(a)(3) proviso does not contemplate or authorize the classification of employees in connection with the execution or effectuation of a union-security requirement otherwise consistent with its terms; the classification of employees in connection with the execution and enforcement of any union- security obligation, absent extraordinary circumstances, is characterized as evidence of discriminatory intent, per se, sufficient to establish the existence of a statutory violation. No decisions of this Agency have been cited, however, in support of either proposi- iton. Their acceptance would involve a significant extension of current decisional doctrine. Given full scope, indeed, these propositions would seem sufficient to support a contention that maintenance-of-membership contracts, in and of them- selves, violate Section 8(a)(3) and Section 8(b)(2) of the statute, since they neces- sarily subject some of the employees they cover to a union-security requirement and exempt others. Research, however, has failed to reveal any case in which a mainte- nance-of-membership contract has been challenged as illegal, per se, since the passage of the Act, as amended. Cf. Pressed Steel Car Company, Inc., 89 NLRB 276, 283; The Electric Auto-Lite Company, 92 NLRB 1073, 1092. There would seem to be considerable reason, therefore, to doubt the intention of the General Counsel to make such a generalized contention at this time. Essentially, I find, the arguments of his representative may be reduced, instead, to an assertion that the particular classification of employees contractually designated as subject to the union-security provision now in issue to too broadly defined, and that the enforcement of the agree- ment, with respect to some members of the group, would involve discrimination statutorily proscribed. To a consideration of this contention, we must now turn. The Board has observed, albeit in another context, that "discrimination" is a gen- eral term, and that it may involve flexible concepts such as reasonableness and motivation, in addition to the mere fact of disparate treatment. Local 153, Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO (Bendix Aviation Corporation), 99 NLRB 1419, 1421. And in a line of cases which involved a problem somewhat analogous to the one now posed-those which dealt with the discharge of employees whose union mem- bership had allegedly been denied or terminated, under a valid union-security clause, for reasons other than their failure to tender the periodic dues and initiation fees uniformly required of them as a condition precedent to the acquisition or retention of membership-the Board has held that the imposition of diverse requirements with respect to the initiation fees and dues which union members may be charged is permissible, but that any distinctions in that field must be based upon "reasonable" general classifications. The Electric Auto-Lite Company, 92 NLRB 1073, 1077; Food Machinery and Chemical Corporation, 99 NLRB 1430. Cf. International Association of Machinists, Precision Lodge No. 1600 (Adel Precision Products, et al.), 120 NLRB 1223; National Automotive Fibres, Inc., 121 NLRB 1358. In the Food Machinery case, for example, the Board held, expressly, that a labor or- ganization, under a valid union-shop contract, may require of a former member who has let his membership lapse, twice the initiation fee required of employees not previously affiliated with it Such a requirement was held nondiscriminatory, in view of the absence of any evidence with respect to an "underlying discriminatory motive and intent" attributable to the union, and in view of the absence of any evidence that the only basis for the disparate treatment of the employee involved was to he found in the length of his employment. The Board went on to declare that Section 8(a)(3) and Section 8(b)(2) of the statute have been construed to permit a labor organization with a union-security agreement to charge, as a condition precedent to the acquisition or retention of membership, different initiation fees and 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD periodic dues, provided they are based upon a reasonable classification. In this connection, it observed that: all that the Respondent Union has done in this case is to adopt a rule that former members are entitled to special consideration, more or less favorable than that accorded new members depending upon the history of the individual's association with its affiliated organization. . . Congress did not intend the Board to find labor organizations in violation of the law, where, as here, follow- ing well-settled practice they have done no more than to establish a different, but fairly reasonable, classification of former members as distinguished from new applicants. In our opinion a contrary interpretation is unnecessarily harsh and is required neither by the spirit nor the literal language of that section [Section 8(b)(5)].. We find only that the Respondent Union did not per se violate the Act by according former members special consideration in setting their reinstatement fee, whether that fee was greater or less than the initiation fee required of new or other reasonable classifications of applicants. Parity of reasoning would seem to suggest the propriety of a conclusion that a "reasonable" classification of employees with respect to the applicability of a con- tractual union-security requirement may be permissible under the statute. The mere existence of such a classification, therefore, absent specific evidence with re- spect to the existence of an underlying discriminatory motive and intent, attributable to the contracting parties, ought not to be considered sufficient to establish a statutory violation. I so find. (3) Applicants as members It is argued at the outset, however, that the employee classifications in the 1956- 57 union-security provision-revived in the Memorandum of Understanding and modified-ought to be considered unreasonable, and therefore defective on their face, first, because the agreement purported to classify employee applicants for union membership after a given date, per se, as union members, and, secondly, because it purported to subject every such employee applicant without distinction, to certain designated financial obligations immediately subsequent to its effective date, or the inception of their employment, whichever was later. (a) The designation of applicants as members It is asserted, in this connection, that the "mere execution" of a union membership application by an employee has never been considered, absent unusual circumstances, sufficient to warrant the imposition of obligations which a union is generally considered free ,to impose upon employees who have met every condition precedent to membership and "become" union members. No precedents have been cited, however, in support of the contention noted. It represents an overstatement. See Merrill-Stevens Dry Dock and Repair Company, (Arb.) 17 LRRM 2666. In several War Labor Board cases, also, questions with respect to the membership status of employee applicants for union membership have been characterized as questions to be settled by the labor organization involved and its members. See Anaconda Copper Mining Company, (WLB), 13 LRRM 1836; Interstate Steamship Company, et al., (WLB), 13 LRRM 1508. And conventional maintenance-of membership clauses in some trade agreements have, in fact, been construed to require maintenance-of-membership by an employee of the employer bound, under certain circumstances, merely on the basis of his execution of a union membership application. Interstate Steamship Company, et al., supra; National Fireworks, Inc., (WLB), 13 LRRM 1824. In still other cases, applicants for union membership have been found subject to a maintenance-of-membership obligation, under trade agreements, on the basis of evidence that they were permitted to participate in union affairs after their applications had been submitted. See North American Aviation, Inc., (Arb.), 10 LRRM 1184; cf. Brown and Sharpe Mfg. Company (WLB), 10 LRRM 987. The only Board decision which the General Counsel has cited, in this connection, suggests the possible propriety of a similar conclusion under the Act, as amended. Utility Co-Workers' Association, 108 NLRB 849, 857-861. In this case, the Board affirmed a Trial Examiner's determination that certain applicants for union membership were not "members" subject to dismissal under a contractual maintenance-of-membership provision, for the reason, among others, that they had never been required to satisfy certain conditions precedent to membership set forth in the union's constitution. In this connection, the Trial Examiner had observed that: To any applicant for membership, these [conditions precedent] are the condi- tions and terms with which he might reasonably be expected to acquaint himself. NORDBERG-SELAH FRUIT, INC., ETC. 737 and which therefore must be regarded as normally controlling whenever the question may arise as to whether any given applicant has in fact and as a matter of right, become a member. While perhaps the Respondent's executive council had the power . to "waive" these conditions, as it apparently at- tempted in the case of the Burlington applicants, by providing for "members at large" with a temporary suspension of dues payments, the effectiveness of the "waiver" in its bearing upon whether an applicant became a member would, in any event, seem clearly to depend upon its communication to the applicant so that he would know of his admission to membership in spite of his failure to meet the usual, constitutional conditions for . . . admission. There is an additional, equally cogent reason for coming to this conclusion. As has been noted, "memberships at large," even assuming that the Respondent could properly have created them under its constitution, conferred none of the substantial membership participation and voting rights enjoyed by members of local councils under the constitution. In the opinion of the undersigned, the provisions of the . . . contract making maintenance of membership a condition of employment in the cases of old employees, must be construed as referring to the full and only membership status provided for by the Respond- ent's constitution. For the contract itself, which would afford the sole basis under the Act for excusing the Respondent's action, gives no definition or qualification in its use of the terms "member" and "membership." Since Sandusky, Collar, and Sexton could have been regarded at best as "members at large," without the substantial membership rights of members of local councils, they were not "members" within the only possible, reasonable meaning to be given to the contract, and the contract therefore affords no justification for the Respondent's insistence that they "maintain" membership or suffer discharge. [Emphasis supplied.] This language would certainly seem to suggest, conversely, that applicants for union membership may properly be held obligated to perfect and maintain member- ship status, under a trade agreement, if they can be shown to have satisfied the conditions precedent to the achievement of membership laid down in their union's constitution, or if they can legitimately be characterized as entitled to exercise the "substantial membership participation and voting rights" enjoyed by full-fledged union members. Cf. Montgomery Ward and Company, 121 NLRB 1552. I so find. The constitution of the International Brotherhood of Teamsters-which governed the administration of the Respondent labor organization throughout the period with which this case is concerned-contains no provision, however, which sets forth the conditions precedent to the achievement of local union membership by an applicant. It does define eligibility for membership. The procedure necessary to assure the maintenance of good standing on the part of any member "paying" his initiation fees, and all members "paying" dues to local unions is also outlined. While the circumstances which might deprive a dues-paying member of his good standing are detailed in the document, the implication that a type of membership may be constitutionally recognized, disassociated from the payment of initiation fees and dues, is nowhere negated. The practices of the Respondent Union in this connec- tion, therefore, would seem to be relevant. And the testimony of Secretary-Treasurer Farrington and Business Agent Cotner does establish, in the absence of dispute, that the Respondent Union normally accords "membership" status to individuals who have executed membership application cards. When such a card is submitted, it is "accepted" by the organization if it bears the applicant's signature and the informa- tion requested. A ledger card is prepared for the applicant at the Union's office; it becomes a part of the organization's file. And no requirement is imposed, under every circumstance, that the applications must be accompanied by initiation fees and dues. If the applications are secured in the course of an organizational cam- paign, initiation fees are normally waived. With respect to dues, the representatives of the Respondent Union testified, without contradiction, as follows: Dues begin with their employment under our jurisdiction where we have an agreement. . . We receive monthly payroll lists from employers who are under contract and they [employees] would receive dues notices beginning upon their return to employment under our jurisdiction where we have an agreement. 554461-60-vol. 12G 48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dues are required provided a contract is negotiated at the place we are attempt- ing to organize. If a contract is negotiated and put into effect, at that time the applicants begin paying dues and not before. Farrington's testimony also establishes that the dues obligation of applicants already in the employ of an enterprise newly bound under a contract would be treated as an obligation arising initially for the month in which the contract became effective, despite the fact that their membership applications might have been submitted some- time previously. When the Respondent Union achieves an agreement with an employer, in other words , the dues liability of membership applicants then in the employ of the firm involved is not, I find, extended back to any month during which the agreement was being negotiated. The Respondent Union, I find, imposes no requirement , in this connection, that applicants must attend a meeting of the organization and take a membership oath before their acceptance; nor is there any requirement with respect to their appear- ance before an executive board for admission to membership . No notice is given applicants, routinely, with respect to the acceptance of their application, or with respect to the preparation of their ledger card at the Respondent Union's office. If an employee of a firm under union contract applies for membership , he is notified to attend the next regular meeting of the organization to be initiated . When such applications are secured in the course of an organizational campaign , however, they are normally held by the Respondent Union until the negotiation of an agreement with the company involved. After such an agreement has been obtained , the em- ployee applicants of the firm are asked to begin dues payments ; they are also "encouraged" to attend the next regular union meeting for initiation, I find, but not all of them do so. No official notices with respect to initiation are sent. Employees who do report for initiation , however, are requested to complete a ritual furnished by the international organization , which includes a recital of their membership obligation; nothing in the record suggests that the use of this ritual is constitutionally prescribed The available evidence with respect to the "substantial membership rights" of applicants is scanty . It does establish, however, that the Respondent Union makes no distinction between "members " who have taken an oath of obligation and those who have not . Members become eligible for death benefits and other benefits available through the organization only after their dues payments have been initiated. But applicants are permitted to attend union meetings , I find, and to vote on con- tract proposals which would affect their employment . In this connection, when asked whether the Union customarily notified applicants, after a contract's execu- tion, that their dues obligation to the organization had matured , Farrington testified, credibly, as follows: We have not had occasion to since I have been in office . For this reason, we have not sent out any such notices because the people involved have been attending the meetings prior to the effectiveness of any contract . The people are notified of the proposal, are called into a meeting, vote on the acceptance or rejection of the proposal . If they accept the proposal , which would include the effective date of the agreement, then they might as a matter of course during the meeting be reminded that they would now start paying dues , or they might not. [ Emphasis supplied.] This testimony will clearly support a conclusion that "applicants " for union mem- bership are permitted to attend meetings of the organization , and to exercise certain voting rights; there is parallel testimony by Cotner which suggests that financially obligated members delinquent in dues payments "three months or more" are likewise permitted to attend meetings , and to take an active part in the affairs of the organiza- tion, despite a constitutional provision with respect to the automatic suspension of their union membership Cf Pure Oil Company, Wofford Oil Division, 62 NLRB 1039, 1040 , and representation cases too numerous to cite. It would seem to be clear that some "membership rights" in the Respondent Union may be exercised by applicant members and suspended members without regard to the fact that their financial obligations to the organization may have been waived temporarily , deferred, or accumulated . I so find. In substance, therefore, the available evidence would seem to warrant the follow- ing conclusion : The constitution of the International Brotherhood of Teamsters- which, under normal circumstances , would be considered determinative in this context-sets forth no conditions precedent to the achievement of local membership. And in the absence of a relevant constitutional provision , the practice of the Respondent Union with respect to the recognition of applicants as members must NORDBERG-SELAH FRUIT, INC., ETC . 739 be considered determinative of their status. No evidence has been adduced, in this connection, except that proffered by officials of the Respondent labor organiza- tion; it establishes the Union's routine acceptance of applicants as members without formality, and without the payment of initiation fees and dues in certain cases. Although the record will not support any finding that the Respondent Union nor- mally communicates to applicants the fact of their admission to "membership" without an initiation fee payment, and without a requirement that dues be paid immediately, it will support an inference that membership applicants are normally apprised of their right to attend union meetings, and their right to vote on contract proposals affecting their employment, despite the fact that their financial obliga- tions may not have matured. These rights, as I see it, deserve characterization as sufficiently "substantial" to put such applicants on notice with respect to the Re- spondent Union's recognition of their "membership" status Under the circum- stances, I find, the classification of membership applicants as union members, in the contractual provision now under consideration, cannot be considered unreasonable. Cf. Montgomery Ward and Company, supra. And the imposition of a maintenance- of-membership requirement upon such applicants cannot be considered, per se, discriminatory. (b) The failure to distinguish classes of applicants If, however, the union-security provisions now in issue, properly construed, can be said to affect the employment rights of some applicants for union membership in a manner proscribed by the statute, their indiscriminate maintenance and enforce- ment would seem to be subject to administrative interdiction. The available evi- dence with respect to this aspect of the agreement under consideration, thereof, must now engage our attention. It is the General Counsel' s contention, in this connection, that the applicant group designated as subject to the agreement's maintenance-of-membership requirement is too broadly defined because it includes every current employee of the employers bound under the memorandum agreement who may have signed an application for union membership on or after January 18, 1945, without regard to the circumstances under which such a card was signed, and without regard to subsequent developments. The record establishes, without contradiction, that the January 18, 1945, cutoff date for membership applicants was utilized by the parties to define the group subject to the contractual union-security requirement because it marked the end of an escape period previously ordered by the War Labor Board to dispose of a dispute with respect to the scope of a maintenance-of-membership contract then under negotia- tion. No contention is made in this case, however, that the union-security provision now in issue ought to be held invalid, specifically, because it would have required maintenance-of-membership within the Respondent labor organization on the basis of stale applications. At the outset, it is argued that the statute not to be construed to permit the imposition of a union-security restriction upon any current employees of employers contractually bound, absent a showing that they were privy to some employer- employee relationship within the multiple-employer unit governed by the current agreement, or a predecessor agreement, when their membership applications were executed. Under the language now in issue, an individual currently employed within the contractual unit, signatory to a membership application in the respondent labor organization "at any time" previously, would be obligated to complete and maintain his membership in good standing, even though he might not have been working for an employer bound under the memorandum agreement or a prior committee agreement at the time of his signature. I find merit in this observation. This Agency has, of course, found nothing illegal in a contractual union-security clause which requires immediate maintenance-of-membership without a grace period, on the part of a firm's old employees holding legitimate "membership" status in the organization contractually bound, as of the effective date of the agreement involved. Charles A. Krause Milling Co., 97 NLRB 536. And in another case, it has refused to find a flaw in a contractual provision which establishes an immediate maintenance-of-membership requirement, without a grace period, for any employees newly hired after the effective date of an agreement, if they hold membership in the union contractually bound as of their date of hire Wagner Iron Works, 104 NLRB 445, 488-489. These cases, however, cannot be deemed controlling with respect to the issue now presented; the "membership status" of the employees with whom this case is concerned must be considered distinguishable. Applicants for membership in the Respondent Union, currently employed, could conceivably fall into several categories, exclusive of those who may have proceeded to pay initiation fees and regular dues after the execution of their application, to 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perfect and complete their union membership , prior to the effective date of the memorandum agreement now in issue. These categories may be listed gas follows: (1) Applicants who-at the time of their application-were in the employ of an enterprise privy to the Memorandum of Understanding, or a prior Committee agreement, and thus part of the multiple-employer unit established pursuant to these agreements. (2) Applicants who-at the time of their application-were in the employ of an enterprise privy to a separate agreement with the Respondent Union which included a union-security provision. (3) Applicants who-at the time of their application-were in the employ of a firm without a contractual commitment to the Respondent labor organization. Membership applicants in the category last designated could, of course, have executed their applications: (a) while in the employ of their current employer, prior to his affiliation with the Tree Fruits Labor Relations Committee; (b) while in the employ of some other firm, prior to its committee affiliation; or (c) while in the employ of a firm which may not yet have become a part of the multiple- employer unit with which we are here concerned. We may first consider the legal status of any applicants who may have signified their desire to join the Union while in the antecedent employ of some firm, other than their current employer, already privy to the Memorandum of Understanding or a prior committee contract. It would certainly seem to be arguable, at least, that the Respondent Union and their current employer ought to be free to treat the ante- cedent acts of such applicants as viable commitments. Their decision to affiliate would have been made, necessarily, with full knowledge of the union-security obli- gations entailed-and since those obligations, voluntarily and knowingly assumed at the time of their application, would be the same under the committee agreement applicable to their current employment, insistence upon the fulfillment of such obligations without the allowance of any grace period subsequent to the agreement's execution or the date of their hire could not be characterized as unreasonable. Charles A. Krause Milling Co., supra; Wagner Iron Works, supra. I so find. An applicant who may have signified his desired to join the Respondent Union while in the antecedent employ of some firm, other than this current employer, privy to a different agreement with the Respondent Union would certainly seem to deserve other treatment, however. We may postulate the existence of an applicant, under the circumstances indicated, who did not make the payments required to achieve membership in good standing in the respondent labor organization, during his previous employment, but who currently appears on the payroll of a firm privy to the memorandum agreement under consideration. Such an applicant, despite the Respondent Union's willingness to recognize his "membership" status, may never have been able to attend the organization meetings at which the memorandum or its predecessor multiple-employer agreements were approved; in short, he may never have been able to exercise any substantial membership right such as the right to vote with respect to the approval or adoption of the agreement under which his present maintenance-of-membership obligation may be said to have arisen. In such a case, it certainly could not be argued that his willingness to assume a main- tenance-of-membership obligation, negotiated and made part of a committee agree- ment, had been demonstrated. And in the absence of some evidence that such an employee had made a voluntary and knowledgeable choice, no immediate and unqualified obligation to maintain membership in the Respondent Union could legit- imately be imposed. See Utility Co-Workers' Association, supra. I so find. With respect to the maintenance-of-membership obligation of an applicant for union affiliation who may have signified his desire to join the organization while in the employ of a firm without a contractual commitment to it, however, either of the conclusions noted could conceivably be appropriate; the particular factual situation would presumably be determinative. On the one hand, it might well be arguable.-on the basis of considerations noted-that maintenance-of-membership pursuant to the memorandum agreement and its union-security provision could legitimately be required of employees if their prior membership applications had been executed while they were in the employ of an employer previously free but now privy to a committee agreement. In such cases, the possibility could not be excluded that the applicants accepted for union membership may have been afforded some opportunity, at least, to exercise their right to vote as members of the organi- zation, with respect to the adoption of a committee agreement affecting their employ- ment. With respect to current employee applicants whose prior employers may not have become a part of the multiple-employer unit, on the other hand, the absence of any prior opportunity to voice approval or disapproval of some projected com- mittee agreement would seem to be a likelier possibility. Employee applicants denied NORDBERG-SELAH FRUIT, INC., ETC. 741 such an opportunity could not, of course, be held to have achieved union member- ship in esse-as distinguished from membership in posse only-by the exercise of any substantial membership right. And as to them an attempt to enforce a main- tenance-of-membership obligation might well be considered improper. To sum the matter up, then, we must conclude that a contractual maintenance-of- membership provision applicable without distinction to every prior applicant for union membership in the current employ of a given firm, absent any grace period allowance, is too broad-since it may operate to impose an immediate membership maintenance requirement upon specific employees, despite the absence of evidence that they were ever afforded an opportunity to indicate their acceptance of mem- bership status in the union involved, by the exercise of a substantial membership right. Additionally, it may be noted that the union-security provisions now in issue would require the current employees of any firm bound by the memorandum agree- ment, who may have signed a union membership application in the course of their employment, or while in the employ of another employer privy to a committee contract, to perfect and maintain membership in the Respondent labor organization, even though their employment with such an employer may have been interrupted by a genuine break in service within the contract unit-other than a seasonal layoff or leave of absence-subsequent to their execution of a membership application. A union-security provision susceptible of such an interpretation, on its face, exceeds permissible limits. Convair, A Division of General Dynamics Corpora- tion, 111 NLRB 1055, 1056; Idarado Mining Company, 77 NLRB 392. In the last cited case, which dealt with the propriety of a discharge under a maintenance-of- membership clause, this Agency observed that: The obligation under the contract to remain a member in good standing of the contracting union rested on employees. When Miller severed his employment relationship with the respondent, his obligation to remain a member in good standing of the Mine Production Workers ended at the same time. The ob- ligation was not merely suspended, ready to be imposed at any time in the future that Miller might be again employed by the respondent. On his reemployment by the respondent, in a new position and as a new employee, approximately a year after he had voluntarily resigned from the respondent's employ, Miller's status was like that of any other new employee; he was required to remain a member in good standing of the Mine Production Workers only if he vol- untarily rejoined that organization after his reemployment. In the light of this determination, a definition of the employee group subject to the maintenance-of-membership provision in the memorandum agreement herein must be considered too broad if legitimately open to construction as inclusive of in- dividuals subjected to a break in service within the contract unit, other than a normal seasonal layoff or leave of absence, subsequent to their execution of a union mem- bership application. I so find. The General Counsel has also referred to the fact that the contractual maintenance- of-membership requirement now in ,issue appears to cover any current employees of the employers contractually bound who may have cancelled or withdrawn union membership applications subsequent to their execution and submission. And I find the failure of the parties to provide for the exemption of employees so situated sig- nificant. Clearly, an employee of some enterprise privy to the memorandum agree- ment-who may have executed an application for union membership previously while in the employ of a firm without committee affiliation, or who may have executed such an application prior to any election by his employer to adopt the multiple-employer contract with its union-security provision-ought to be considered free to revoke or withdraw his application prior to the date on which he might otherwise be made subject, legitimately to the agreement's maintenance-of- membership obligation. New Jersey Bell Telephone Company, 106 NLRB 1322, 1324. Since the union-security provision which the memorandum agreement revived appears in its face to make no allowance for the fact that an individual applicant otherwise bound might have attempted to revoke or withdraw an application for membership in the Respondent labor organization prior to the time when his maintenance-of-membership obligation thereunder vested, the provision would seem to warrant characterization as invalid. Cf. Convair, A Division of General Dy- namics Corporation, supra. And I so find. If the contention is made, nevertheless, that a contractual union-security provision may legitimately require the employees of an employer currently bound thereby to perfect and subsequently maintain union membership, without allowing them a grace period, merely because they may have executed a membership application at some time in the past, the language of the statute, itself, would seem to be adequate to 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrate the propriety of a conclusion that any such contention ought to be rejected. Under the Section 8(a)(3) proviso, only one type of discrimination in regard to hire or employment tenure, reasonably calculated to encourage member- ship in a labor organization, is permitted; nothing in the statute, we learn, may be relied upon to preclude an employer from the execution and enforcement of an agreement with a union which requires employees to perfect and maintain union membership as a condition of employment on or after the 30the day subsequent to the beginning of their employment, or the effective date of the agreement in ques- tion, whichever is later. By virtue of this language, of course, the failure of a trade agreement to provide a "grace period" in certain cases, prior to the imposition of a membership maintenance requirement, may be of crucial significance. In the context of this case we may perhaps assume, for the sake of argument, that some employees could legitimately be compelled to perfect their union membership immediately after the execution of a trade agreement, and that they may be required to maintain their membership thereafter, for the duration of the agreement-specifically, as noted, (a) if they have in fact executed union membership applications previously, while in the employ of their present employer or other employer similarly bound; (b) if their subsequent employment under the contract with a union-security pro- vision has not been interrupted by a genuine "break in service" as that term is con- ventionally understood; and (c) if no antecedent attempt on their part to revoke or withdraw any applications they may have executed can be demonstrated. Under the statutory proviso, however, the current employees of an enterprise privy to the memorandum agreement now in issue, whose membership applications had previously been submitted to the Respondent labor organization in the course' of their employ- ment with other firms not within the contract unit, could only have been required to perfect their union membership. I find, on or after the 30th day following the inception of their employment under the agreement, or its effective date, whichever was the later. By parity of reasoning, an employee whose signature had been affixed to such a membership application in the course of his employment with a firm privy to the memorandum agreement or a prior committee contract, and who there- after had suffered a genuine break in service, would seem to be entitled to a similar 30-day grace period after the resumption of his employment before any contractual obligation with respect to the perfection and maintenance of his membership in the Respondent labor organization could legitimately be imposed. Convair, A Division of General Dynamics Corporation, supra; Idarado Mining Company, supra. And an employee whose antecedent application for union membership had been can- celled or revoked, prior to the inception of his employment under the union-security provision now in issue, certainly would be entitled to the statutory 30-day grace period, also, prior to the imposition of any union membership requirement. Since the membership maintenance obligations established by the terms of the memorandum agreement now under consideration did not, expressly, permit em- ployees to enjoy the statutory 30-day grace period, under the specific circumstances set forth above, they must be characterized as obligations which exceeded permis- sible limits. And the maintenance and effectuation of the memorandum agreement, therefore, between September 11, 1957, and March 28, 1958, must necessarily be characterized as a course of conduct which involved the Respondents in the com- mission of the specific unfair labor practices which the amended consolidated com- plaint lists. I so find. Additionally, the General Counsel has advanced a contention that the challenged union-security clauses deserve characterization as illegal because they placed an applicant for membership in the Respondent labor organization under a "perpetual obligation" to pay initiation fees and accrued dues, which could have been imposed retroactively to cover a period during which he may not have been in the employ of an employer privy to a committee contract. I find no merit, however, in this particular contention. The second paragraph of the union-security provision with which we are concerned did provide, certainly, that any "employee" privy to a union membership application executed on or after January 18, 1945, would be required to pay the balance of his initiation fees and all dues which accrued after the execution of the memorandum agreement. And, theoretically, this language could be taken to mean that an employee whose applica- tion for union membership had been executed prior to the inception of his employ- ment, and prior to the execution of the trade agreement which covered that employment could have been required to pay dues for the months immediately subsequent to the execution of the agreement, even though his employment thereunder may have begun later. Analysis suggests, however, that this would have been a strained interpretation of the union-security provision. By its terms, the obligation to pay initiation fees and "all dues which accrue" was applied only to the "employees" of the enterprise privy to the agreement. Normally, the contractual language would NORDBERG-SELAH FRUIT, INC., ETC. 743 be construed to require such a person to meet only those dues obligations which accrued subsequent to his employment. And there is testimony in the present rec- ord, which has not been contradicted, to establish that the Union did, in fact, so construe the union-security provision; it does not appear to have made any attempt to collect dues from employees covered by a union-security contract for any period of time during which such an agreement may have been effective prior to their em- ployment thereunder. Since the language cited by the General Counsel, then, does not necessarily-on its face-warrant the interpretation which he has suggested, and since the practice of the Union in this connection would, in my opinion, support an inference that the language has not been given the challenged interpretation, I find this contention of the General Counsel, with respect to the illegality of the con- tractual union-security provision, untenable. The contentions of the General Counsel with respect to the paragraphs which were added to the union-security provision now under consideration, in the Memorandum of Understanding executed by the parties, is not entirely clear. His argument considered as a whole, however, suggests that he would urge the invalidity of at least a portion of this supplementary material. I have considered the paragraphs added to the contractual provision. In view of my determination, elsewhere in this report, that the provision is essentially invalid, a determination with respect to these added paragraphs might well be considered surplusage. Upon the entire record, however, I am disposed to reject any conten- tion that the paragraphs in question, separately considered, contributed to the in- validity of the union-security obligation which the Memorandum of Understanding revived. In the first paragraph, an exemption from the agreement's membership mainte- nance requirement was allowed, without qualification, to growers and their immediate family members, if they had not already become union members or executed union membership applications. In the second paragraph, a similar exemption was granted to all current employees of any committee affiliate, including those seasonally laid off and those on leave of absence, if their records established employment prior to January 1, 1955, with an enterprise within the multiple-employer unit. Such em- ployees were allowed to continue work for the same enterprise within the multiple- employer unit without any obligation to complete or maintain union membership- even though unable to qualify for the "grower" exemption previously noted-if not already subject to a maintenance-of-membership obligation on the basis of their past union membership, current affiliation, or previous application for union membership. Since these additions to the prior contractual union-security provision, in sub- stance, established the right of certain designated employee groups to claim an exemption from any maintenance-of-membership requirement, they cannot be said to have established discrimination with respect to the employees beneficially affected, within the intent of Section 8(a)(3) of the statute. Nor can it be argued that the exemption of these designated employee groups from a contractual maintenance-of-membership requirement otherwise imposed contrib- uted to the illegality of the contractual provision vis-a-vis other employees. The benefits of the exemption were created for: (a) growers and members of their immediate family, and (b) present employees with an employment history before January 1, 1955, within the multiple-employer unit-but only for employees thus designated who had not already achieved union membership in good standing volun- tarily or applied for membership in the organization. Such exemptions added nothing to the thrust of the maintenance-of-membership requirement, and cannot be said to have contributed an element of discrimination statutorily proscribed. It is true that certain paragraphs added to the Memorandum of Understanding did impose a union-security requirement with respect to some employees over and above the maintenance-of-membership obligation previously noted. The memorandum did provide that present employees within the multiple-employer unit-presumably as of the September 11, 1957, contract date-who had not perfected their union member- ship and who had not signed membership applications as of that date, would be free to work for the balance of the 1957-1958 season free of any obligation to ac- quire union membership, but would become obligated to join the Union thereafter- unless entitled to claim the benefit of one of the exemptions previously noted-after 45 days of actual work for any committee affiliate, in one season. And such em- ployees would, of course, be obligated to maintain membership in the organization thereafter, as a condition of employment. The last paragraph of the modified union- security provision in the memorandum also provided, substantially, that "new" employees not entitled to claim any exemption under the agreement would become obligated to join the Union and maintain their membership thereafter upon the completion of 45 days of actual work for any committee affiliate in one season, 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defined to begin on August 1, 1957, and thereafter on the first of August of each year. I find nothing objectionable in these last-mentioned provisions , despite the cony trary contention of the General Counsel with respect to the first of them. As counsel for the Respondent Company has observed , they are less restrictive of the rights of employees than the 30-day clause authorized in the Section 8(a) (3) proviso. In the face of a possible contention that such union-security requirements ought to be sufficient to note that a reasonable basis has been cited for the designation of each employer prior to January 1, 1955, within the multiple -employer unit, I find it considered discriminatory nevertheless , because of the exemption afforded growers, their immediate family members, and present employees of a committee affiliate exempt classification . As counsel for the Respondent Company observed in his brief: The employers want to protect growers whose interests are in conflict with the Union, and also to protect their longtime employees who had refused to become members of the Union, and thereby had indicated a very strong desire not to affiliate with the Union. The General Counsel has, indeed , conceded the existence of a reasonable justifica- tion for the "grower" exemption . With respect to the last -mentioned employee group, also, it should be noted that length of service is relied upon to justify a limited exemption from any union-security requirement ; agency determinations, therefore, which suggest that the actual imposition of various union-security require- ments differentiated on the basis of service tenure warrant proscription may be dis- regarded as inapposite. Since the record gives no indication of a contention by the General Counsel that the union -security provision now under consideration ought to be held invalid because it would have required the payment of fines in addition to initiation fees and dues , as a condition of employment, I find it unnecessary to discuss the attempt of counsel for the Respondent Company to counter any such thesis. Although some of the contentions advanced by the General Counsel have been rejected, above, as unwarranted, I am satisfied that the union-security provisions of the memorandum now in issue , taken as a whole, can be said to have affected the employment rights of some applicants for union membership in a manner statutorily proscribed . And the available evidence with respect to the Respondent Union's practice thereunder will not support a conclusion that the organization has made any real effort to eschew indiscriminate maintenance and enforcement of these challenged contractual requirements. Since the possibilities of discrimination latent in the contractual language, therefore , were never effectively foreclosed, I am satisfied that the union-security provision of the 1956-57 trade agreement-revived by the Memorandum of Understanding and modified-deserves administrative interdiction under Section 8(a)(3) and Section 8(b)(2) of the statute. And I so find. b. The new contract (1) The issue It is the General Counsel 's contention that the agreement which the Committee and the Respondent Union executed March 28, 1958 , with a retroactive September 11, 1957, effective date, is also invalid. Essentially, his arguments in this connection parallel those advanced with respect to the Memorandum of Understanding and its union-security provision. (2) First paragraph With respect to the maintenance-of-membership requirement embodied in the first paragraph of section 7(a) of the agreement , the General Counsel has taken no execption. It should be noted, at the outlet, that this maintenance -of-membership require- ment is limited to all of the employees within the multiple-employer unit who are "now" members of the Respondent labor organization ; the requirement is no longer applicable to those employees who have "at any time" become union members, regardless of the effective date of their membership . Since responsibility for the maintenance of union membership thus arises by virtue of an employee 's present membership status the possibilities latent in the contractual language previously noted in the Memorandum of Understanding have largely been eliminated . However, since the membership maintenance requirement set forth in the first paragraph of section 7(a) of the agreement does extent , thereunder, to all of the employees NORDBERG-SELAH FRUIT, INC., ETC. 745 "now" enjoying membership status, a question might be raised, conceivably, with respect to the date as of which the agreement speaks. Despite its execution on March 28, 1958, it was expressly given a September 11, 1957, retroactive date. If the agreement's membership maintenance requirement may legitimately be con- strued as limited to employees with union membership status as of its execution date, no question would seem to be presented. If, however, this contractual re- quirement can be construed to impose a maintenance-of-membership obligation upon employees with union membership status as of September 11, 1957, an issue with respect to the agreement's legality could, conceivably be presented; so construed the provision might well be characterized as one which imposes a retroactive dues obligation upon certain employees, solely because of their union membership status at an earlier date when, arguably, no valid maintenance-of-membership requirement existed. The General Counsel has made no reference, however, to the legality of section 7(a)'s first paragraph, in the light of its possible retroactive impact. And in the absence of any evidence sufficient to warrant a conclusion that the contractual language has ever been enforced, I find that no need exists to consider its possible invalidity, at this time, under the statute. (3) Applicants as members The second paragraph of section 7(a) of the new agreement clearly reflects a substantial revision of the comparable provision revived in the Memorandum of understanding previously executed. Employee applicants for union membership on or after January 18, 1945, are required to become members of the Respondent labor organization, as a condition of employment, within 30 days after the inception of their employment or the effective date of the new agreement, which is later; and they are likewise required to maintain their union membership thereafter, for the duration of the agreement. It is the General Counsel's position, substantially, that this revision of the con- tractual union-security provision ought to be held invalid under the statute, also, for the reasons which have already been found sufficient to warrant characterization of the antecedent memorandum provision as illegal. Upon the entire record, and in the light of applicable decisional precedents, I have concluded that the General Counsel's position is sound. Since the new agreement requires prior applicants for union membership, currently in the employ of an enterprise contractually bound to "become" members of the Respondent labor organization within 30 days after the inception of their employment, or the effective date of the agreement, whichever is later, it would clearly impose a retroactive obligation upon some of the employees, at least, within the multiple-employer unit. Prior applicants for union membership, employed within the contractually determined unit on the agreement's September 11, 1957, effective date, and applicants hired by enterprises contractually bound between the agreement's effective date and the date of its execution, would not be accorded the full 30-day grace period required under the statute, within which to perfect their membership status. At the outset, it should be noted that mere applicants for union membership on or after January 18, 1945, are no longer defined, contractually, as members; they are, instead, declared obligated to "become" members of the Respondent labor organization as a condition of employment. By virtue of their antecedent employ- ment within the multiple-employer unit, clearly, they constitute a group which must be considered entitled to the full 30-day grace period defined in the Section 8(a) (3) proviso, for the benefit of old employees without union membership as of the effective date of an agreement or their later dates of hire The new agreement, however, clearly establishes the date which would toll their purported 30-day grace period retroactively, in relation to the date of its execution. And the imposition of such a retroactive union-security requirement has been administratively proscribed. Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1393-1394. In the cited case, this Agency was called upon to determine the propriety of a memor- andum agreement executed on April 8, 1954, with a retroactive March 15, 1954, effective date, and the propriety of certain discharges effectuated thereunder; the ,agreement in question purported to modify an antecedent contract with a union- security clause believed to be illegal, and to provide for a lawful union shop. With respect to the issues presented, the Board observed that: . .. at the instance of the Respondent Union, certain employees were denied employment on various days in June, July, and August, 1954, because they were delinquent in the payment of dues to the Respondent Union and had refused to pay or arrange to pay such delinquencies. In each case, the delin- 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quencies included dues which had accrued before the execution of the memo- randum agreement dated March 15, 1954 . As the only contractual provision which required membership in the Respondent Union as a condition of employment, at the time such dues had accrued, was the foregoing illegal clause in the December 22, 1953, contract, we find that by requiring the payment of such delinquencies as a condition of further employment , the respondents have enforced the illegal union-security provisions of their December 22, 1953, contract . . at least until the execution of the memorandum agreement dated March 15, 1954, the respondents maintained in effect the unlawful union- security provisions of their December 22, 1953, contract . . . we also disagree with the Trial Examiner's conclusion that the memorandum agreement dated March 15, 1954, effectively cured the unlawful union-security provisions of the December 22, 1953, contract . . . the memorandum agreement itself fails to accord the required 30-day grace period to old employees who were not members of the Respondent Union. For such employees , the agreement requires membership as a condition of employment "on and after the thirtieth day from the date hereof." No evidence was offered that the phrase "the date hereof" was intended to mean anything other than the date set forth on the face of the agreement, March 15, 1954. As this agreement was executed after that date, it clearly failed to accord such nonmembers the required 30-day grace period following the date of its execution . [Emphasis supplied.] This Board determination establishes that a contractual union-security provision, similar to the one under consideration in this case , which would allow old employees without current union affiliation no more than 30 days after a current agreement's retroactive effective date to perfect their membership status, will not be considered sufficient to meet statutory requirements. Recently, in a representation case, the Board announced that henceforth an agreement with a union-security provision which does not, on its face, conform to statutory requirements will not be considered sufficient to bar an election . Keystone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880. Specifically, the Agency held that it would no longer treat as election bars: . contracts whose union-security provisions do not expressly grant old, non- union member employees the statutory 30-day grace period within which they are not required to join the union, . or contracts containing ambiguous union-security provisions which may be interpreted as either lawful or unlawful because the language employed is not clear or is in general terms. [Emphasis supplied.] And in order to assist interested parties, a model union-security clause was drafted which the Board characterized as the maximum permissible under the statutory proviso. With respect to several references therein to the "effective date" of the agreement which might appropriately contain such a clause, the Board observed, in a footnote, that: Where the effective date of the agreement is made retroactive, the execution date shall be substituted for the effective date. [Emphasis supplied.] In the light of these decisional principles , the contention of the Respondent Com- pany, the Committee , and the Union herein , that the second paragraph of section 7(a) of the March 28, 1958, agreement ought to be considered valid would seem to be foreclosed. Every employee within the multiple-employer unit identified as an applicant for union membership on or after January 18 , 1945, is expressly required thereby to have "become" a union member within 30 days after the agreement's September 11, 1957, effective date, or within 30 days of their employment subse- quent to the designated date, whichever was later. To the extent that such a require- ment deprived these employees of a right to defer the perfection of their membership status with the Respondent labor organization until the 30th day after the new agreement's execution date, it exceeded permissible limits. I so find. The decision of this Agency in the Keystone case, of course, merely purported to define the types of union-security agreement which the Board would consider insuffi- cient to bar an election in representation cases. And the Board and the courts have, upon occasion , noted in complaint cases that trade agreements are "practical working arrangements frequently drawn by laymen unschooled in the niceties of legal draftsmanship" with respect to which strict and technical constructions ought to be eschewed. N.L.R B. v. Rockaway News Supply Company, Inc., 345 U.S. 71; Whyte Manufacturing Company, Inc., 109 NLRB 1125, 1127 . Nevertheless, how- ever valid such observations might be, with respect to ambiguous or imperfectly NORDBERG-SELAFI FRUIT, INC., ETC. 747 articulated agreements, they certainly ought not to be considered determinative of judgment with respect to the validity of a union-security clause explicitly violative of statutory limitations. And whatever deference the Board may owe to the well- established legal doctrine that contracts ought to be construed as lawful wherever possible-Whyte Manufacturing Company, Inc., supra-such a doctrine, in my opinion, cannot be relied upon to excuse the patent failure of the Committee and the Respondent labor organization to allow various employee groups, entitled to a statutory 30-day grace period, the requisite time interval to become union members. Seaboard Terminal and Refrigeration Company, supra. 1 so find. In the light of this conclusion, I find it unnecessary to determine the validity of the General Counsel's further contention that, construed in context, the contractual obligation imposed upon employee applicants for union membership to "maintain" their membership for the agreement's duration required them to pay a sufficient amount of back dues to achieve such membership in good standing, and thus invested the agreement with an implicit retroactive feature. D. The contractual "savings" clause With respect to each of the agreements effectively challenged in these cases, the Respondents have cited, however, certain exculpatory contract language as sufficient to remove any taint of illegality under the statute. Previous reference has been made to the fact that these agreements provide, expressly, that employers bound will not be required to discharge employees in violation of any State or Federal law. The contention that such a provision, per se, ought to be considered sufficient to excise any contractual illegality must, nevertheless, be rejected. Pursuant to deci- sional doctrine which is now well established, this Agency has repeatedly held, with judicial approval, that general contract language calculated to operate as a dis- claimer of any intent to violate the Act, as amended, or to suspend the effectiveness of any contract clause, unspecified, which may properly be considered illegal under the statute, does not go far enough. Nothing short of an express contractual com- mitment, calculated to apprise the employees covered thereby that the application of some specific provision would be suspended or withheld, until its legality had been established, has ever been given effect. To nullify any questionable clause in a trade agreement, such a "savings" provision must specifically defer the effective application of the clause until a determination has been made with respect to its propriety. N.L.R.B. v. Broderick Wood Products Company, et al., 261 F. 2d 548 (C.A. 10); N.L.R.B. v. E. F. Shuck Construction Co., Inc., et al., 243 F. 2d 519 (C.A. 9), enfg. 114 NLRB 727; N.L.R.B. v. Gottfried Baking Co., 210 F. 2d 772 (C.A. 2); N.L.R.B v. Gaynor News Co, 197 F. 2d 712, 723-724 (C.A. 2), affd. sub nom Radio Officers' Union, etc., AFL; A. H. Bull Steamship Company, 347 U.S. 17; Red Star Express Lines of Auburn, Inc. v. N.L R B., 196 F. 2d 78 (C.A. 2). And since the contractual language cited by the Respondents cannot properly be characterized as language expressly calculated to forestall or defer the application of either union-security provision now under consideration, it cannot be considered sufficient to immunize them against a claim of illegality. In the Respondent Company's behalf, it is argued, however, that employers privy to the Memorandum of Understanding and the new agreement have nevertheless consistently interpreted these documents to require nothing more than the tender of initiation fees and current dues, consistent with the requirements of law, on the part of their employees. And among other things, it is asserted by the Respondent Company's counsel that no employee within the multiple-employer unit has ever been required to join the Respondent Union, actually until the expiration of the statutory 30-day grace period. In this connection, I find it sufficient to note that the available evidence will support an inference, at least, to the contrary. There is record testimony proffered by union representatives, which has not been con- tradicted, to establish that the Union customarily requests persons known to it as membership applicants to Complete any payments due on their initiation fee and to begin the payment of current dues within the very first month of their seasonal employment with an enterprise contractually bound. Nothing in the available evidence suggests that the Respondent Company or any committee affiliate has ever challenged such union action. Even if the practice of the Union could have been established as a practice consistent with the Respondent Company's contention, however, I would now have to reject any argument that the union-security provision now challenged by the General Counsel ought to be considered lawful; absent language expressly calculated to defer the impact of the provision for the statutory period, its coercive thrust as a discriminatory device, reasonably calculated to encourage union membership, would necessarily have remained unimpaired. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The dismissal of Lila Abhold Facts 1. Background In the fall of 1954 the Respondent labor organization initiated an organizational campaign among the Respondent Company's employees. After some informal con- tacts between union representatives and the employee group, a preliminary meeting was arranged; it was held on Saturday, December 4, 1954, at the Respondent Union's hall. Approximately 15 or 20 employees, most of them from Nordberg- Westbrook, were present. The Respondent Union's spokesmen included Business Agent Ralph Cotner, Secretary-Treasurer Cal Williams, and President Earl Edsell of the Respondent labor organization. Several subjects, I find, were discussed. Primarily, the employees appear to have inquired about the benefits they might receive under the agreements then current in the industry. There was also a discussion with respect to the union action which would be required to bring about an agreement with the Respondent Company and what the employees involved would be expected to do. One of the union repre- sentatives, I find, explained that the Union wished to assist the employees to achieve an agreement with their employer to govern their wages, hours, and conditions of work, but that it would also wish some assurance, by way of return, that they were interested in becoming union members and that they would become affiliated with the organization. The testimony of Business Agent Cotner, which has not, in my opinion, been challenged effectively, in this connection, establishes that: The people in attendance, the employees from Nordberg, in attendance at that meeting, were told that it would be necessary for them to make application for membership; that those applications authorized the local union to legally rep- resent them as bargaining agent; that they would serve as proof to the National Labor Relations Board of our representation in order to get an election set up; and they were also told that they would be expected to complete those applica- tions [that is, begin dues payments], upon the effective date of an agreement. They were, at the same time, told that in the event we were not successful in organizing the plant and getting a contract that they would not be obligated to pay dues. Considerable questions came up regarding what they would be asked to pay in the way of initiation fees, what they would be asked to pay in the way of dues, and it was consistently stated that they would be asked to pay nothing, which included the people who were already members, that they would be asked to pay nothing until such time as we gained an agreement and their dues would begin at the effetcive date of that agreement, a month. After these explanations, union membership applications were distributed. In the course of general discussion which followed, employee Helen Burke, I find, stated categorically that she would be willing to vote in a representation election, if the Union could arrange one, but that she did not wish to apply for union membership, and that she would not sign any document which could be used later to require her to affiliate with the Respondent labor organization, or pay dues. In behalf of the Respondent Union, Secretary-Treasurer Williams questioned the validity of Burke's viewpoint; he could not, however, persuade her to change her mind. Ultimately, the assemblage split into a number of informal discussion groups. One such group, which included Burke and employee Lila Abhold, gathered around Secretary-Treasurer Williams. Burke, I find, advised Williams that she would sign a union membership application card, but only if it were marked as one executed only for the purpose of enabling the Respondent Union to secure bargaining rights. Williams made the requested notation on Burke's card, and subsequently advised Cotner of his action. The available evidence reveals a disagreement between Busi- ness Representative Cotner and the General Counsel's witnesses with respect to whether Williams attempted to secure the approval of the other union representatives present before he made the notation now under consideration. This testimonial conflict, however, need not be resolved. Williams was then the secretary-treasurer of the Respondent labor organization. Clearly, therefore, he possessed the authority, incidental to his office, to bind the organization by conduct within the scope of his official authority-whether or not the evidence can be considered sufficient to sustain a conclusion that specific conduct on his part was, in fact, expressly authorized or ratified by fellow union officials. Abhold, who had come to the meeting in Burke's company, was a witness of this exchange. Presumably-although the record is not entirely clear-her demeanor conveyed the impression that she shared Burke's view NORDBERG-SELAH FRUIT, INC., ETC. - 749 with respect to the execution of a union membership application card. Her testimony with respect to the sequence of events which followed reads: Well, after he wrote on Helen's [card] he turned to me and said, "Would you like me to write that on your card, too?" And Mr. Cotner was standing there and he said it wouldn't be necessary because I could prove it was for bargaining reasons only, as we had already written it on Helen Burke's card. I said, "All right, if you are that honest I trust you," and I looked Mr. Cotner right straight in the eye when I said that. She thereupon signed and submitted her application card; she did not, I find, require the addition of any notation that the card would only be used to establish the Respondent Union's right to request a representation election. Cotner denied the remark attributed to him, to the effect that it would be un- necessary to add such a notation to Abhold's card because she would be able to rely upon the limitation noted on Burke's card to establish that her own card had been executed for "bargaining purposes" only. The record in this respect is not entirely clear. I have found it unnecessary, however, to resolve the testimonial conflict indicated. Burke attributed the disputed observation to Secretary-Treasurer Williams; she also characterized Abhold's reference to her "trust" as a remark addressed to the secretary-treasurer. And Cotner-whose involvement in the Burke-Williams-Abhold conversation appears to have been limited-could not actually recall, specifically, the particular circumstances under which Williams made the notation on Burke's card. Upon the entire record, I have reached the conclusion that Cotner's unwillingness to confirm Abhold's testimony, with respect to his alleged observation that a nota- tion similar to that on Burke's card would not be required, merely reflects a failure of memory on his part or hers. Nevertheless, I am satisfied, and find, that Abhold was actually advised by some union representative that her application for union membership would be treated as a card executed for "bargaining purposes" only, if she desired it to be so treated, since Burke's card had been designated, in her presence, as a card submitted for the limited purpose indicated. None of the other employees present appeared to have expressed any interest in the submission of a card for the limited purpose of enabling the Respondent Union to request a Board election. On December 9 and 14, 1954, petitions for a representation election at each of the Nordberg plants were filed with the Regional Office of this Agency. And shortly thereafter, I find, a second organizational meeting was held at the Respondent Union's hall. When questioned as to any representations made at the second meet- ing, with respect to the purpose and effect of the membership application cards, Business Representative Cotner replied that: They were to the effect that the people were making application for member- ship which initially, legally, authorized the local union as their bargaining agent and gave us the authorization which we needed to proceed toward setting up an election, petitions for an election; and, at a later date, in the event we were successful in organizing the company and getting a contract, that they would be expected to complete those applications beginning the month that the contract was effective. We reiterated time after time that no charges would be made until we had obtained the contract with them; we kept saying over and over, as an individual you will be putting out no money yourselves until you have begun to derive the benefits from that contract. No question was raised at the second meeting, I find, with respect to the limited use of signed application cards as "bargaining authority" cards. Applications for membership in the Respondent labor organization, however, were still being sought. Cotner's testimony with respect to the discussion which accompanied their solicita- tion-which has not been effectively contradicted-reads as follows: As I recall, at various times the question came up from the people in attendance at the meeting, which has always been an issue as far as an organization in these food warehouses, as to whether or not when we gained the contract all employees would be required to join the Union. We told them that we would like to be able to assure that they-that would be the type of agreement that was signed, but we could not give them that assurance since the major agree- ments in this industry were the Tree Fruits, Incorporated, carried with it a membership clause which was discussed and so forth at that time. We pointed out to them that it could be handled two ways, that with sufficient representa- 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion from the employees in the plant we could either sit down and negotiate a contract with Mr. Nordberg as an individual or it would be very likely that he would probably join the Association. On December 20, 1954, consent elections were held, under Board auspices, at each Nordberg plant. The Respondent Union was not, however, designated a majority employee representative at either plant. These elections were subsequently set aside. The record is silent with respect to the subsequent history of the petitions filed by the Respondent Union; no additional elections ever appear to have been conducted. On November 3, 1955, the Respondent Company-through Earl Nordberg, who acted for both of his corporate enterprises-and the Committee executed an active membership agreement, pursuant to which the Respondent Company became an active member of Tree Fruits Labor Relations Committee, Inc., subject to all the provisions of its articles of incorporation and bylaws. This agreement, on the Respondent Company's part, included a commitment: To abide by and live up to all contrticts and agreements heretofore or hereafter negotiated and signed by first party on second party's behalf, with Union's representing second party's employees. Pursuant to this agreement, the collective-bargaining contract then considered ef- fective by the Respondent Union and the Committee was accepted by the Respondent Company for its Westbrook and Selah operations. The General Counsel has made no contention, under the amended consolidated complaint now before this Agency, that the Respondent Union did not represent a majority of the Respondent Com- pany's employees in November 1955; the record, indeed, contains no evidence whatever with respect to the Respondent Union's representative status within the designated employee group at the time. Individuals then in the Respondent Com- pany's employ, who had previously signed applications for union membership, were 11encouraged" to begin dues payments for the month of November, within which the multiple-employer committee contract then in force initially became effective at the Nordberg plants. The Respondent Union's office employees, I find, were in- structed to dispatch dues obligation notices to employee applicants for union mem- bership, after a reasonable time had elapsed within which they could have initiated dues payments themselves. 2. The discharge The records of the Respondent Union indicate-and I find-that such a notice, with respect to her dues obligation, was dispatched to Abhold on December 28, 1955, from the Respondent Union's office. No response, however, was received. Abhold testified that she did not receive the notice. Upon the entire record, I am satisfied that such a notice was actually sent. Since the issues raised with respect to the propriety of his discharge, however, require no determination as to whether the notice sent by the Union was, in fact, received, I have made no attempt to re- solve the testimonial conflict implicit in the record. On March 16, 1956, Secretary-Manager F. W. Shields, Jr., of the Committee, was advised, in a letter which Cotner signed, that seven employees of the Respondent Company, Abhold included, had failed to maintain their union membership in good standing pursuant to the terms of the trade agreement then in force. A request was made that the Respondent Company advise the employees designated that they would not be eligible for further employment unless they brought their membership into good standing immediately. On April 2, 1956, Shields was notified by Cotner that the Respondent Union had heard nothing with respect to its March 16 request; the business representative requested that Abhold and five other designated employees of the Nordberg enterprises be.terminated immediately. Thereafter the Respondent labor organization was asked to substantiate its contention that Abhold was a union member subject to termination under the union-security clause of the trade agreement then in force. On April 11, 1956, the secretary-manager of the Commit- tee was informed that the Respondent Union's request for her termination was based upon her application for union membership on December 4, 1954, while in the Re- spondent Company's employ. Since the scheduled termination of Abhold's seasonal employment with the Re- spondent Company was imminent, no termination action with respect to her, pursu- ant to the agreement, was taken. The record in this case warrants an inference that her employment with the Respondent Company at its Selah operation did, in fact, terminate early in May 1956. I so find. Because of illness, Abhold sought no employment with the Respondent Company during the 1956-57 season. The record establishes her reemployment at Respondent NORDBERG-SELAH FRUIT, INC., ETC. 751 Company's Selah plant in October 1957 however-at which time the Memorandum of Understanding, previously noted, governed the wage, hours, and conditions of work at each committee affiliate. On November 15, 1957, Business Representative Cotner of the Respondent Union dispatched a letter to Committee Secretary-Manager Shields, which read as follows: Please be advised that the above-named employee [Lila V. Abholdl is not in good standing with this Local Union having, been terminated at Nordberg- Selah on March 16, 1956, and again on April 2, 1956, therefore, we are re- questing that she be terminated immediately. On November 20, news of Cotner's letter was torwarded to Nordberg by Shields, with a request that the matter be "handled" and the Committee advised. No action appears to have been taken. On December 4, 1957, Shields received a written request from Cotner for further information. On January 9, 1957, Cotner appeared at the Respondent Company's Selah plant to demand Abhold's termination, pursuant to the union-security provisions then in force. The Respondent Company's general manager was shown two applications for union membership allegedly signed by Abhold, in support of Cotner's demand that she be terminated. One of the cards, I find, was the card Abhold executed on December 4, 1954, to which reference has already been made. The other was a card claimed by Cotner to have been executed by "Lila V. Abhold" on September 12, 1953, presumably in the course of her employment by the California Packing Corporation at its Yakima plant. The employee was summoned to the Respondent Company's office about 15 minutes before the end of her working day; she was advised that Cotner had come to discuss her failure to maintain union membership in good standing. When Abhold reiterated her denial of union membership, Cotner exhibited her December 4, 1954, card; the employee insisted that she had not signed the card to apply for union membership, but for "bargaining reasons" only. She was advised by Cotner, how- ever, in substance, that she would have to fulfill her financial obligations to the Re- spondent labor organization or forfeit her employment. (There is a conflict in the testimonial record as to whether Abhold queried Cotner in regard to the amount of her delinquent dues obligation, and as to whether he then advised her, in the presence of General Manager French, that she owed the Respondent Union $200 for "dues and fees and such" approximately; in the light of my ultimate determina- tion with respect to the propriety of Abhold's discharge, however, I find it unneces- sary to resolve the indicated testimonial conflict) Upon Cotner's departure, Abhold was advised by General Manager French that the Respondent Company's hands were "tied" under its current contract, and that her job would be held for her if she could effectuate some arrangement with the Respondent Union in regard to her status. French advised Abhold to work the following day, January 10, 1957, since that would enable her to finish the week, but stated that her employment would then be terminated, until the Respondent firm heard further from her, or from a com- mittee representative, in regard to her union membership status. 3. Subsequent developments On Monday, January 13, 1957, Abhold went to the Respondent Union's office and requested an opportunity to inspect her membership application. She was handed two cards stapled together; the first, I find, was her December 4, 1954, card, and the second was the September 12, 1953, card which she had allegedly signed while a California Packing Corporation employee. Abhold took the cards and tore them in two; she retained the bottom portion of each card-the portion which included her signature or purported signature-and left the Union's office immediately. The top portion of each card-specifically, the portion which contained the printed ma- terial indicative of each card's character as a membership application-was left in the custody of the Respondent labor organization. Abhold's initial charges in this consolidated matter, previously noted, were signed on February 26, 1958; by her; on March 3, 1958, the charges were docketed at the Regional Office of this Agency. 4. Reinstatement On Saturday, March 29, 1958, Abhold received a copy of a letter which Secretary- Treasurer Farrington of the Respondent Union had dispatched on the previous day to the Respondent employer. Therein, the firm was advised that the Respondent Union considered Abhold "eligible for employment" under the terms of the trade agreement then in force; the Respondent Company was requested to reinstate her to her former employment. On Monday, March 31, 1958, Abhold resumed work at 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Westbrook plant. On April 30, 1958, however, Business Representative Cotner of the Respondent Union dispatched a letter to the Respondent Company which read as follows: The above employee of your Company [Lila Abhold] has failed to complete membership in this organization as required by our agreement, and is there- fore not eligible for further employment, and we request that she be terminated immediately. Failure on the part of your Company to comply with this notice by May 5, 1958 will be considered a violation of Section 7-A of our agreement. This letter was referred by the Respondent Company to Committee Secretary- Manager Shields. His reply, dated May 3, 1958, referred to the fact that Abhold's unfair labor practice charges against the Respondent Union and her employer were still pending; the Union was informed that the Respondent Company had been advised to take no action pending a Board determination with respect to the validity of Abhold's membership application. She continued to work for the Respondent Company without interruption. Her employment for the season was finally terminated in the latter part of June-when, apparently, operations at the Selah plant were ended. Conclusions 1. The discharge It is the General Counsel's contention, previously noted in this report, that the termination of Abhold on January 10, 1958, involved the Respondent Union and the Company in the commission of unfair labor practices, simply because the union- security provision which they relied upon to justify her termination did not satisfy statutory requirements. In the light of the present record, I find merit in the contention. The union-security requirements recognized as operative by the parties on Janu- ary 10, 1958, were, of course, those found in the trade agreement they had executed on September 3, 1956, revived and supplemented by the Memorandum of Under- standing executed with a September 11, 1957, effective date. My conclusion that these union-security provisions did not meet statutory requirements has already been noted. And it is well established, of course, that a discharge effectuated pursuant to an invalid union-security requirement must, itself, be considered violative of the statute. The fact that the dischargee in question could conceivably have been ter- minated legally, pursuant to a union-security provision more carefully circumscribed to meet statutory requirements, cannot be relied upon to exculpate the Respondents herein. The union-security provision of the memorandum agreement, which I have found invalid elsewhere in this report, defined the employee group covered by its terms too broadly; it established a maintenance-of-membership requirement with respect to every applicant for union membership subsequent to a designated date, without dis- tinction. Since the employee classifications thus made subject to its terms would necessarily encompass some employees with respect to whom the imposition of a membership maintenance requirement absent a statutory grace period would be invalid, the provision warrants administrative condemnation. And nothing in the present record will support a conclusion that some presumptively legal applications of the contractual language under consideration could have been severed from those found herein to be improper. In the absence of any severance possibilities, the entire provision must be characterized as invalid under the statute. Upon the entire record, therefore, I find that Abhold's termination on January 10, 1958, pursuant to the mandate of the union security provision of the memoran- dum agreement, involved employer discrimination with respect to her employment tenure, reasonably calculated to encourage membership in the Respondent Union, and that it was reasonably calculated, also, to interfere with, restrain and coerce employees in the exercise of rights statutorily guaranteed. By its insistence upon Abhold's discharge, pursuant to the terms of the union security provision herein found to be improper, the Respondent Union caused the Respondent Company to discriminate against her, in violation of the statute, and thereby also committed unfair labor practices. In the light of these determinations, I find it unnecessary to assess the validity of the General Counsel's further contention that the Union lacked justification for its insistence upon Abhold's discharge, under the union security provisions of the memorandum agreement, and that the Respondent Company lacked justification for NORDBERG-SELAH FRUIT, INC., ETC. 753 its action, because the card she signed on December 4, 1954, had been executed under circumstances which ought to have foreclosed its consideration as an application for Union membership. 2. The attempt to cause Abhold's discharge With respect to the Respondent Union's attempt to cause the discharge of Abhold on April 30, 1958, a similar conclusion would seem to be warranted. The contractual union-security provision then in effect, under which the Re- spondent labor organization presumably purported to act, differed, of course, from the one it had relied upon to justify its antecedent discharge demand. On April 30, 1958, the Union's request for Abhold's dismissal would necessarily have rested upon the maintenance-of-membership requirement embodied in the new agreement exe- cuted March 28, 1958, with a retroactive effective date. Since these requirements set forth as a part of the new agreement were also subject to a fatal legal flaw, noted elsewhere in this report, the Respondent Union cannot, by reliance upon the agree- ment and its terms, escape statutory sanctions. In the light of this conclusion, I find it unnecessary, again, to determine the validity of the General Counsel's secondary contention that Abhold-for reasons previously noted-ought not to be considered subject to any contractual maintenance- of-membership requirement embodied in the new agreement. The argument of the General Counsel in this connection, of course, rests partially upon testimony which his representative characterizes as sufficient to support a conclusion that the applica- tion for union membership which Abhold executed on December 4, 1954, was, in fact, submitted and accepted by the union representatives for "bargaining purposes" only. With respect to the union membership application which Abhold is alleged to have executed on September 12, 1953-while in the employ of the California Packing Corporation at its Yakima plant-which the Respondent Union now urges independently to justify its discharge demand, the General Counsel's argument rests upon testimony which, if credited, would sustain a conclusion that the execution and submission of the card have not been established. I have found it unnecessary to articulate factual conclusions with respect to these disputed issues. It should be noted, however, that the present record may pose an additional issue. The fact that Abhold destroyed both of the application cards which she had allegedly executed and submitted-and that she did so on January 13, 1958, prior to the March 28 execution date of the new trade agreement between the parties with its modified union-security provision-is conceded. No express contention has been made, however, that her course of conduct in this connection amounted to a revoca- tion or withdrawal of these putative applications prior to the date on which any maintenance-of-membership obligation predicated upon either could validly be considered to have vested. A possible justification for some such contention may be noted; upon the entire record, however, I have determined that the Respondent Union's renewed demand for Abhold's discharge was improper, without any need to reach or decide this question. Upon the entire record, I am satisfied that the Respondent Union's renewed demand for Abhold's dismissal on April 30, 1958, constituted an attempt to cause the Respondent Company to discriminate with respect to her employment tenure, for the purpose of encouraging union membership, in violation of the statute. I am satisfied, also, that the Respondent Union's action was reasonably calculated to restrain and coerce employees in the exercise of rights statutorily guaranteed. And it is so found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The courses of conduct attributable to the Respondent Company and the Respond- ent Union herein set forth in section III, above, since they developed in connection with the operations of the Respondent Company described in section I, above, had a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, if continued, would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondents have engaged in and continue to engage in unfair labor practices, it will be recommended that they cease and desist therefrom, and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. 554461-60-vol. 126-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found, specifically, that the Respondent Company discriminated with respect to the employment tenure of Lila Abhold to encourage union member- ship in violation of Section 8 (a) (3) of the Act, as amended , and that the Respondent Union caused it to engage in such discrimination on January 10, 1958 , in violation of Section 8(b)(2) of the statute. It will be recommended, therefore, that these Respondents, jointly and severally, make Lila Abhold whole for any loss of pay she may have suffered as a result of the discrimination practiced against her, by the payment to her of a sum of money equal to the amount she normally would have earned in the employ of the Respondent Company, between the date on which discrimination was practiced against her and the date of her subsequent reinstate- ment, noted elsewhere in this report, less her net earnings during that period. Cf. Crossett Lumber Company, 8 NLRB 440, 498; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. Since the record establishes that Abhold's pay losses, if any, were all suffered within the first quarter of the year no need exists for a specification that her pay losses be computed separately for each calendar quarter in which dis- crimination continued . Cf. F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. It will be recommended, however, that the Respondent Company, in order to facilitate expeditious compliance by the respondents with the backpay recommendations made above , shall preserve and, upon request, make available to the Board and its agents all pertinent payroll and other records. It has been found , also, that certain portions of the union -security provision embodied in the March 28, 1958 , trade ,agreement executed by the Respondent Union and the Tree Fruits Labor Relations Committee , Inc., for, and on behalf of, its various member employers , the Respondent Company included , exceed permissible limits. In the light of this determination, it will be recommended that the Respond- ent Company, specifically, cease and desist from the maintenance and enforcement of the union-security provision found in the agreement noted , and from the execution, maintenance, or enforcement of any extension , renewal, modification, or supple- ment of the agreement which retains the union-security features herein found to be improper. In the General Counsel's amended consolidated complaint , there is a reference to the trade agreement now under consideration as: a collective bargaining agreement between Respondent Union and the Committee for, and on behalf of, its member employers including, but not limited, to Respondent Employer, executed March 28, 1958, effective as of September 11, 1957... . Elsewhere in the complaint, it is alleged that "by executing, maintaining, and giving full force and effect to the union security provision" embodied in the agreement designated, the Respondent Union engaged and continues to engage in unfair labor practices within the meaning of Section 8(b)(1) and (2) of the statute . Despite the inability of the General Counsel to designate the Committee and all of its member employers as parties respondent in this case , because of the fact that none of these entities-except the Respondent Company herein-has been charged with the commission of unfair labor practices , the clear effect of the allegations noted is to charge the Respondent labor organization , at least, with the commission of certain designated unfair labor practices coextensive with the multiple -employer coverage of the trade agreement which allegedly included an improper union-security provi- sion. These charges have been found substantiated . It will be recommended , there- fore, that the Respondent Union, specifically , cease and desist from the maintenance, effectuation, or enforcement of the union-security provision herein found to be improper, with respect to the employees of any employer privy to the March 28, 1958, agreement by virtue of its committee affiliation. Additionally , it will be recom- mended that the Respondent Union cease and desist , immediately, from the main- tenance or enforcement of any agreement with a similar union -security provision, negotiated to extend , renew, modify, or supplement the March 28, 1958, agreement, and that the Respondent labor organization refrain , hereafter, from the execution of any contract with union-security provisions which retain the features herein found to be improper, calculated to affect the employees of any employer with a committee affiliation . United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594, 598. The maintenance and enforcement of the union -security provisions herein found to be violative of the statute-and particularly the discrimination practiced against Abhold thereunder, which goes to the "heart" of the statute-indicates a general purpose, attributable to both Respondents, to limit the lawful activity of employees, NORDBERG-SELAH FRUIT, INC., ETC. 755 and persuades me that such practices are potentially related to similar unfair labor practices, the future commission of which may reasonably be anticipated on the basis of the courses of conduct attributable to the Respondents herein. The preven- tive purposes of the statute will be thwarted, I find, unless the remedial action in this case, and any order which may be necessary, can be made coextensive with the threat. In order, therefore, to make the interdependent guarantees of Section 7 effective, prevent a recurrence of the unfair labor practices found, minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the statute, it will be recommended that the Respondents cease and desist from infringe- ment in any other manner upon the rights guaranteed in the aforesaid section of the Act, as amended. There is an allegation in the amended consolidated complaint that-since Septem- ber 3, 1957, approximately-employees of the Respondent Company subject to the union-security requirements of the agreements thereafter negotiated and given effect by the Respondent Union and the Committee have been required to pay initiation fees, dues, fines, and assessments as a condition of employment, and that they are still required to make such payments. And the testimony herein indicates a tacit acknowledgment, by all counsel, that the allegation noted was intended to lay the foundation for a contention by the General Counsel that the reimbursement of all such monies, at least in the case of the Respondent Company's employees, ought to be considered appropriate and necessary to expunge the effect of the unfair labor practices found. Substantially, this does appear to be the General Counsel's contention. And upon the entire record, evaluated in the light of the applicable precedents, I am con- strained to find his suggestion with respect to the necessity and propriety of such a remedial recommendation meritorious. Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533, 539; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing and Heating Corporation), supra. One qualification, however, should be noted. It appears to be the General Counsel's contention that the employees nominally subjected to the union-security provision of the memorandum agreement found improper elsewhere in this report have been required to pay "fines and assessments" as a condition of employment. No such requirement is apparent, however, on the face of the memorandum agreement. The union-security provision embodied in the September 11, 1957, agreement does refer to the obligation of employees who have "at any time" become members of the Respondent labor organization, regardless of their date of membership, to maintain "membership in the Union in good standing" as a condition of employment-but it has been noted, elsewhere, that the General Counsel has not attacked this particular union-security requirement in the memorandum agreement as improper. If the propriety of the contractual language now in question had in fact been litigated, and if it had been found illegal, I would nevertheless, find it appropriate to note at this point that "membership in good standing" with the Respondent labor organization is constitutionally defined to de- pend upon the payment of regular monthly dues in advance. See article X, section 5(c), of the constitution, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Any 3-month arrearage in the payment of "dues, fines, assessments, or other charges" is, of course, defined as sufficient to cause a member's automatic suspension, but this appears to be an internal sanction of the organization, privileged under the Section 8(b)(1) (A) proviso, and without necessary significance under the union-security provision.) The union-security re- quirement embodied in the memorandum agreement which has been found to exceed permissible limits merely requires applicants for union membership on or after January 18, 1945, to pay any balance due on their initiation fees and all dues which may have accrued. And there is nothing in the present record which would warrant a conclusion that the coercive thrust of the illegal union-security provision in the memorandum agreement was ever extended to cover anything more than the pay- ment of initiation fees and dues. If any fines and assessments were actually collected from the Respondent Company's employees by threats to invoke the illegal union- security provision, no testimony or other evidence has been adduced to support such a factual conclusion. No recommendation has been made, therefore, that the Respondent Union refund any fines and assessments collected from the Respondent Company's employees. In response to the General Counsel's present suggestion that a remedial recom- mendation would be appropriate with respect to the reimbursement of the initiation fees and dues collected by the Respondent Union under the March 28, 1958, agree- ment, counsel for the labor organization has argued that its good-faith attempt to 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formulate a revised union-security provision which would meet statutory standards ought to be considered sufficient to justify the withholding of the suggested recom- mendation or order, at least with respect to moneys collected pursuant to the March 28 agreement. Established decisional doctrine, however, compels the rejection of this argument. The testimonial record does establish that the Respondent Union was advised of the possible illegality of the union-security provision embodied in the Memorandum of Understanding while the investigation of the Regional Office with respect to this case was in progress. It also establishes, and I find, that the Respondent Union's counsel made an effort, thereafter, to modify the challenged provision, and that various Board agents attached to the Regional Office were apprised, in substance, of the contractual modifications which the Respondent Union proposed to make in order to meet the requirements of the Act, as amended. Upon the entire record, therefore, the Respondent Union's counsel may, perhaps, deserve credit for good faith in connection with his effort to draft a union-security provision which would meet the statutory requirements and provide the Respondent Union with the max- imum permissible degree of union security. The presumptive good faith of the Respondent labor organization and its counsel, however, cannot be considered dia- positive of the issue now under consideration. Elsewhere in this report it has been found that the modified union-security provision which the parties privy to the March 28, 1958, agreement adopted, exceeded permissible limits, despite their presumptive effort to formulate requirements which would pass Agency muster. Since the employees affected by the provision were necessarily subjected, as a result, to discrimination and improper restraints, present Agency policy with respect to the reimbursement of moneys coercively collected must be considered applicable to the sums received by the Respondent Union from employees of the Respondent Company for initiation fees and dues payments under the March 28 agreement. Accordingly, it will be recommended that the Respondent Union reimburse the Respondent Com- pany's employees for any initiation fees and dues unlawfully collected from them pursuant to the successive union-security provisions herein found to be illegal. Since the first of these provisions became effective on September 11, 1957, this recommendation cannot be construed to call for the reimbursement of any sums collected more than 6 months prior to the date of the initial charges filed in this consolidated matter. In the light of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Nordberg-Selah Fruit, Inc., and Nordberg-Westbrook Fruit, Inc., herein desig- nated jointly as the Respondent Company, function as a single employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. The Respondent Union, Fruit and Vegetable Packers Union Local 760, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 3. By its participation in the execution, maintenance , and enforcement of a memorandum agreement found herein to have incorporated an improper union- security provision by reference, and by its further participation in the execution, maintenance, and effectuation of a successor agreement with a modified union- security provision which also exceeded the limits set forth in the Section 8(a)(3) proviso of the statute, the Respondent Company engaged in and continues to engage in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act, as amended. 4. By its discharge of employee Lila Abhold on January 10, 1958, pursuant to a demand presented by the Respondent Union to effectuate the union-security pro- vision embodied in the Memorandum of Understanding previously noted, the Re- spondent Company engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, as amended. 5. By its participation in the execution, maintenance, and enforcement of the memorandum agreement found herein to have incorporated an improper union- security provision by reference, and by its further participation in the execution, maintenance, and effectuation of a successor agreement with a modified union- security provision which also exceeded the limits set forth in the Section 8(a)(3) proviso of the statute, the Respondent Union engaged in and continues to engage in unfair labor practices within the meaning of Section 8(b)(1) (A) and (2) of the Act, as amended. 6. By its demand that the Respondent Company discharge Lila Abhold on January 10, 1958, which caused the Respondent Company to discriminate against her in 'RICKERT CARBIDE DIE, INC. 757 violation of Section 8(a)(3) of the'statute, and by its attempt, on April 30, 1958, to cause the Respondent Company to discharge her after reinstatement, again in viola- tion of Section 8(a)(3) of the statute, the Respondent Union engaged in and con- tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, as amended. 7. The unfair labor practices herein found are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Rickert Carbide Die, Inc. and Carl Walter Beier Rickert Carbide Die, Inc. and Joseph M. Fletcher, Jr. Cases Nob. 7-CA-2283 and 7-CA-?309. February 23, 1960 DECISION AND ORDER On October 29, 1959, Trial Examiner Owsley Vose issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed .3 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the . Trial Examiner with the modification indicated below' 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 i The Respondent also requested oral argument. As the record, exceptions , and brief adequately present the issues and positions of the parties, the request for oral argument is denied.- Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and- Fanning). s The Respondent excepts to the Trial Examiner's refusal to exclude the two alleged discriminatees from the hearing room . On motion of the General Counsel the Trial Examiner excluded all other witnesses. The determination whether witnesses should be excluded from , a hearing is .a matter within the discretion of .the Trial Examiner. We find no abuse of discretion in this case especially in view of the fact that the two whom the Respondent would exclude filed 'the unfair labor practice charges in this proceeding. As, persons filing a charge, each was a "party" within the Board's Rules . and entitled to participate fully in the hearing. Sec. 102.8 Rules and Regulations ; John L. Clemmey Company, Inc., 118 NLRB 599, 600; Lewis Kariton, d/b/a ConeoUdated Frame Company, 91 NLRB 1295. * We do not adopt the Trial Examiner's remarks in footnote 11, as they are unnecessary to the ultimate findings in the case. 126 NLRB No. 99.