American Bakery & Confectionery Workers, Etc.

AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC . 937 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 Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 179 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are labor organizations within the meaning of Section 2 (5) of the Act: 2. The Respondents John T. O'Brien and David Sark have been and are co- trustees of Respondent Local 179 and as such trustees the said Respondents are agents of the Respondent International Union and Respondent Local 179 within the meaning of Sections 2(5) and 8 (b) of the Act. Respondents Thomas Floyd and Elrie Floyd have been and are temporary president and vice president, re- spectively, of Local 179 and are agents of Respondent Local 179 and Respondent International, within the meaning of Sections 2(5) and 8 (b) of the Act. 3. The Respondents, by directly appealing to the employees of customers, sup- pliers, carriers, and other employers doing business with Alexander Warehouse & Sales Company at the latter's Peoria and Urbana establishments, not to cross picket lines to do business with Alexander at said establishments, and by threatening to picket the employers of said employees if they continued to do business with Alexander at said establishments, and by other means, including orders, directions, instructions, requests, appeals, and threats of disciplinary action , the Respondents have engaged in, and are inducing and encouraging employees of customers, sup - pliers, carriers, and other employers doing business with Alexander at the said establishments to engage in, strikes or concerted refusals in the course of their employment to use, process , transport, or otherwise handle or work on any goods, articles, materials or commodities , or.. to perform services for their respective em- ployers. By such picketing and inducement and encouragement of employees of the said various employers , to engage .in a concerted refusal to perform services for their several employers, the above-named labor organizations have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and ,(7) of the Act. [Recommendations omitted from publication.] American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173 and Continental Baking Com- pany, Inc. Cases Nos. 16-CB-148 and 16-CB-149. August 26, 1960 DECISION AND ORDER On December 30, 1959 , Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (b) (2) of the Na- tional Labor Relations Act and recommending that it cease and desist therefrom. and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other 128 NLRB No. 94. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Charging Party also filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs filed by the parties, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the additions, exceptions, and modifications noted below. 1. We agree with the Trial Examiner that the Respondent at- tempted to cause the discharge of employee Joe E. Hendrickson in violation of Section 8 (b) (2) of the Act. In reaching this conclusion, the Trial Examiner considered the following two constituent elements of such a violation: (1) whether the conduct of the Respondent amounted to an "attempt to cause" a discharge within the meaning of that phrase as it appears in Section 8(b) (2), and, if so, (2) whether the discharge action sought by the Respondent, if taken by the Em- ployer, would have been unlawful under Section 8(a) (3). With re- spect to the first of these issues, we agree with the Trial Examiner that the Respondent's conduct constituted an "attempt to cause" the discharge of Hendrickson within the meaning of Section 8(b) (2), but, in reaching this conclusion, unlike the Trial Examiner, we do not rely on the fact that the Respondent, on July 15, 1959, instituted an action in the District Court of Oklahoma County seeking to enjoin the Employer from continuing to employ Hendrickson.' Rather, we rely on the following conduct of the Respondent: On June 26, 1959, A. L. Hendricks, the Respondent's business agent, told Scott, Hen- drickson's supervisor, that the Employer "would have to discharge" Hendrickson because he "was one day past" the period in which he should have joined the Union.' Three or four days later, Hendricks again spoke to Scott, stating, "I am asking you once again to fire this boy, Joe Earl Hendrickson." On July 2,1959, the Respondent wrote to the Employer's personnel manager, stating that Hendrick- son's employment was unlawful and that it was the intention of the Respondent "to take whatever lawful steps that will be necessary to force the company from violation [sic] our contract in this respect." The Trial Examiner, relying on our decision in Denver Building Trades cC Construction Trades Council et al. (Henry Shore),' found that the above conduct of the Respondent was within the protective 1 See Clyde Taylor Company , 127 NLRB 103. a There was in effect a union-security contract requiring union membership not later than the end of 30 days from the date of employment. 3 90 NLRB 1768, enforcement granted with respect to other issues, 192 F. 2d 577 (CA. 10). AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 939 reach of Section 8 (c) of the Act and hence not an "attempt to cause" within the meaning of Section 8(b) (2). We disagree with the Trial Examiner in this respect. We hold that the decision in Henry Shore with regard to the impact of the free-speech clause on requests by a labor organization for the discharge of an employee, stated as broadly as it was in that case, is incorrect. To the extent that the decision in Henry Shore is inconsistent with the decision herein, it is hereby overruled. Senator Taft, in explaining the provisions of Section 8(c), said: "The privilege of this subsection is limited to the ex- pression of `views, arguments or opinion.' It has no application to statements which are acts in themselves or contain directions or in- structions." [Emphasis supplied]." In accord with this view, we find that the above-described conduct of the Respondent in seeking the discharge of Hendrickson was not an expression of views, argu- ments, or opinion within the protection of Section 8(c), but rather a direction to the Employer to discharge Hendrickson, which consti- tuted an "attempt to cause" the discharge of Hendrickson within the meaning of Section 8(b) (2).5 As to the motivation of the Respondent's conduct, we find, in agree- ment with the Trial Examiner and for the reasons stated in the Inter- mediate Report, that Hendrickson's alleged dues delinquency was a mere pretext and that, in reality, the Respondent sought his discharge because he had worked during the Respondent's strike against the Employer and because he had indicated a contemptuous attitude to- ward the Respondent. As the Respondent sought Hendrickson's dis- charge for reasons other than his failure to tender periodic dues and initiation fees, its attempt to cause his discharge was therefore un- lawful under Section 8(b) (2). We find, moreover, that regardless of its motivation in seeking Hendrickson's discharge, the Respondent violated Section 8 (b) (2) in making the demand for Hendrickson's discharge before the expiration of the 30-day grace period for joining the Union, since Hendrickson made a full tender of dues and initiation fees on the 30th day of his employment. Hendrickson was hired on May 27, 1959. On June 26, 1959, Hendrickson tendered to the Re- spondent his initiation fee and his accrued dues in full. In com- puting the period of time within which an act is to be performed, the first day of the period is excluded from the computation.' The 30th day of Hendrickson's employment fell on June 26, 1959. His tender ' Senator Taft's Supplementary Analysis of the Labor Bill as Passed , Congressional Record, vol . 93, p. 7002 (1947) ; cf. International Union of Operating Engineers, etc. (Sub Grade Engsneerting Co.), 93 NLRB 406, 408, enfd . 216 F. 2d 161 (C.A. 8) ; International Brotherhood of Electrical Workers Local 501, et at. (Samuel Langer ) v. N.L.R.B., 181 F. 2d 34, 38 (C.A. 2). 5 The Englander Company, Inc., 109 NLRB 326, 328, 329 ; Local 392, United Associa- tion of Journeymen etc. (Schenley Distillers , Inc.), 122 NLRB 613. °Cf. Board Rules and Regulations , Series 8, Subpart I, Section 102 .114; Federal Rules of Civil Procedure, Rule 6 (a) ; Burnet v. Willingham Loan and Trust Company, 282 U.S. 437; 86 C.J. S. p. 848; 20 A.L.R. 2d 1249. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on that day was therefore timely, and the Respondent's attempt to cause Hendrickson's discharge was thus not protected by the union- security contract. 2. The Trial Examiner recommended that the complaint be dismissed insofar as it alleged that the Respondent violated Section 8 (b) (2) by attempting to cause the discharge of employee Ronald L. Bruce be- cause the steps taken by the Respondent to procure Bruce's discharge "did not go beyond noncoercive requests or demands" and thus its conduct did not constitute an "attempt to cause" the Employer to dis- charge Bruce within the meaning of Section 8 (b) (2). For the reasons stated above, we disagree with the Trial Examiner and find that the conduct of the Respondent in seeking the discharge of Bruce consti- tuted an "attempt to cause" Bruce's discharge within the meaning of Section 8(b) (2). With respect to the motivation of the Respondent, the Trial Examiner found, and we agree, that the Respondent re- jected Bruce's tender of dues and initiation fee not because it was late, but rather "to put a surface gloss of equality of treatment on the Union's rejection of Hendrickson's application." As the Respondent requested Bruce's discharge for a reason other than his failure to tender periodic dues and initiation fees, its action was, in our view, unlawful under Section 8 (b) (2) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173, it officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Causing, or attempting to cause, Continental Baking Company, Inc., to discharge any employee, or in any other manner discriminate against him, in violation of Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like manner, restraining or coercing employees of Conti- nental Baking Company, Inc., in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 941 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: (a) Post in conspicuous places, including places where notices to members are customarily posted, at its office and usual membership meeting place, copies of the notice attached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region of the Board, shall, after being duly signed by a duly authorized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by it to insure that the said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail copies of the said notice marked "Appendix A" to the said Regional Director, after such copies have been signed, as provided above, for posting at the place of business of the said Conti- nental Baking Company, Inc., if it so agrees. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER FANNING, concurring : I agree with the Trial Examiner that the Respondent attempted to cause the discharge of employee Hendrickson in violation of Section 8(b) (2) of the Act and I also would find a violation in that Respond- ent attempted to cause the discharge of employee Bruce. Contrary to my colleagues and the Trial Examiner, however, I base my conclu- sions on the simple proposition that a request for discharge pursuant to a union-security contract is necessarily an attempt to cause dis- charge. In that context I believe that the Board must assume that the Union is attempting to cause the employer to discriminate against the employee requested to be discharged within the meaning of Section 8(b) (2), and need only decide whether the motive in making the request is protected by the union-security proviso of Section 8(a) (3). Apparently my colleagues are intent upon overlooking the direct and simple answer even though it has already served admirably in other cases. See Hardie Tynes Manufacturing Company, footnote 8; see also The Englander Company, Inc., 109 NLRB 326, 329, cited by my colleagues at footnote 5. Clearly Hendrickson's discharge was demanded by the Respondent because he had worked during the Respondent's strike against the 7In 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." 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer and because he had indicated a contemptuous attitude to- ward the Respondent. But Respondent demanded the discharge for the stated reason of failure to tender periodic dues and initiation fees within the time required by the union-security contract. This reason, obviously, was a mere pretext, and constituted an attempt to cause discrimination against an employee in violation of Section 8(a) (3), hence a violation of Section 8(b) (2).8 Respondent gave the same reason for demanding the discharge of Bruce, but, as the Trial Exami- ner found: "There is good reason to believe" that his tender was re- fused not because it was late, but "to put a surface gloss of equality on the Union's rejection of Hendrickson's application." It is my view that the stated reason for requesting Bruce's discharge was also a mere pretext and constituted an additional violation of the same statutory provisions. Thus, I see no need to analyze-as the Trial Examiner did-whether the discharge requests were intended to coerce the Employer in the light of the Board's Henry Shore decision.9 The question in Henry Shore turned upon whether a union's request to an employer to hire its members on a construction job was an attempt to cause the discharge of others already employed, and the Board found that such a request standing alone was mere persuasion protected by the Act's Section 8(c) free-speech proviso. Thus the Board held that a union may promote the employment of its members to that extent without being chargeable under Section 8(b) (2) with an attempt to cause the dis- charge of others. In effect the Board said : "There's no harm in asking in the circumstances." But the request here is a far cry from that : to discharge a named employee for failure to meet his union obligations. Such a request, as I see it and as my colleagues have also seen it in other cases involving union security contracts, constitutes an attempt to cause discharge. Thus, with ample prece- dent on which to decide this case, there seems no reason to turn to Henry Shore with its distinguishable facts and overrule it. And there is surely no justification for doing so by an incredible distortion of legislative history. My colleagues quote from Senator Taft's explanation of the meaning of Section 8(c). In its context he was saying: The section "has no application to statements [to employees] which are acts in themselves, or contain directions or instructions." Clearly the Senator was not speaking of directions or instructions from a union to an employer, as my colleagues imply. When, as 8 See Local 271 of the International Association of Machinists , AFL-CIO (Hardie-Tyner Manufacturing Company ), 123 NLRB 426 ( Member Bean dissenting on the ground that the discharges there were not requested for an unlawful reason ) ; see also Victor Metal Products Corporation of Delaware , 106 NLRB 1361, Sherman Paper Products Company, 116 NLRB 529 , and similar cases involving pretext discharges. 8 Denver Building & Construction Trades Council (Henry Shore ), 90 NLRB 1768, enfd. 192 F. 2d 577 (C.A. 10). AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 943 here, there are requests to discharge pursuant to a union-security contract, it does violence to the plain wording of the Act to con- clude, as the Trial Examiner did as to Bruce, that a discharge re- quest standing alone is not an attempt to cause discrimination, or, as the Trial Examiner did as to Hendrickson, that is necessary to look for additional evidence of coercive act or intent before concluding that the discharge request is an "attempt to cause discrimination" as those words are used in Section 8(b) (2) of the Act. As to Hendrickson it appears that an additional ground for find- ing a violation exists in that he tendered his initiation fee and dues on the 30th day of his employment-not the 31st as computed by the Trial Examiner-hence its refusal by the Respondent on that date was not protected by the union-security contract. CHAIRMAN LEEDOM and MEMBER JENKINS, concurring in part and dissenting in part : We agree with Members Rodgers and Bean, for the reasons stated in their opinion, that the conduct of the Respondent constituted an "attempt to cause" the discharge of employee Hendrickson within the meaning of Section 8(b) (2), and that such action was unlawful under Section 8(b) (2) since the Respondent sought Hendrickson's discharge not because of his alleged dues delinquency but rather be- cause he had worked during the Respondent's strike against the Employer and because he had indicated a contemptuous attitude toward the Respondent. We also agree, and for the same reasons, that the Respondent's conduct with respect to Bruce constituted an "attempt to cause" his discharge within Section 8(b) (2). We do not agree, however, that the Respondent's attempt to cause Bruce's discharge was unlawful. In our view, the Respondent sought the discharge of Bruce solely because of his dues delinquency and not for any reason condemned by the Act. Bruce was hired on April 20, 1959. He did not make a full tender of accrued dues and initiation fee until August 5, 1959.10 Sometime in July 1959, the Respondent demanded that the Employer discharge Bruce. The record does not persuade us that the Respondent had an unlawful motive in seeking the discharge of Bruce. Unlike Hendrickson, Bruce did not work during the strike and at no time did he exhibit contempt toward the Respondent. On the contrary, the Respondent was favorably oriented toward Bruce, as evidenced by the fact that it offered to find Bruce another job. Under the circumstances, we would find that the Respondent sought Bruce's discharge for no reason other than his failuer to make a timely tender of dues and initiation fees. Hence, its conduct was not unlawful under Section 8(b) (2). 10 On June 26, 1959, more than 2 months after he began working, Bruce offered to pay the Respondent his initiation fee and 1 month's dues. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL MEMBERS OF THIS UNION AND THE EMPLOYEES OF CONTINENTAL BAKING COMPANY, 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, we hereby give notice that : WE WILL NOT cause, or attempt to cause, Continental Baking Company, Inc., to discharge any employee or in any other manner discriminate against him in violation of Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like manner restrain or coerce employees of Continental Baking Company, Inc., in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL No. 173, AFL-CIO, Labor Organization. Dated------ ---------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The consolidated complaints' in this proceeding , read together, allege that the Respondent, American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173 (herein also called the Union ), has attempted to cause an Employer, Continental Baking Company, Inc. (also called the Company herein) to discharge two employees, Ronald L. Bruce and Joe E. Hendrickson , in violation of Section 8(a)(3) of the National Labor Relations Act, as amended (61 Stat. 'There are two complaints in this proceeding , both issued by the General Counsel of the National Labor Relations Board, one in Case No 16-CB-148, and the other in Case No. 16-CB-149 Each is based upon an applicable charge filed by the Company with the Board, and duly served upon the Union . Cases Nos . 16-CB-148 and 16-CB-149 have been duly consolidated for hearing and disposition pursuant to Section 10233 (b) of the Board 's Rules and Regulations , Series 7. Copies of both complaints and the order of consolidation have been duly served upon the Union and the Company. AMERICAN BAKERY & CONFECTIONERY WORKERS) ETC. 945 136-163; also referred to herein as the Act), and has caused the said Employer to discharge Hendrickson in violation of said section; and that by its conduct in the premises, the Union has violated Section 8(b)(1)(A) and (b) (2) of the Act.2 The Union has filed an answer to the consolidated complaints, denying, in substance, that it committed the unfair labor practices imputed to it. Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (also called the Board herein) upon all other parties, a hearing was held before me, as duly designated Trial Examiner, on November 3, 1959, at Oklahoma City, Oklahoma. At the hearing, each of the parties appeared through, and was represented by, counsel and was afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. I have read and considered the respective briefs of the General Counsel and the Company filed with me since the close of the hearing. The Union has not filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following findings of fact: FINDINGS OF FACT 1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD Continental Baking Company, Inc., is a Delaware corporation; maintains its principal office and place of business at Rye, New York; is engaged in the business of baking and selling cake and bread products; and, in conjunction therewith, op- erates branch establishments in 34 States, including a plant in Oklahoma City, Oklahoma. The issues in this proceeding involve only the Oklahoma City branch. During the year immediately preceding the institution of this proceeding, the Company, in the course and conduct of its business, shipped products valued in excess of $50,000 from its plant in Oklahoma City to points in States other than Oklahoma. By reason of its interstate operations, the Company is, and has been at all times material to the issues, engaged in interstate commerce within the meaning of the Act. Accordingly, the Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173 admits individuals employed by the Company to membership; exists, in whole or in part, for the purpose of collective bargaining with employers; and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory findings The Union is, and has been for a member of years, the representative of baking and sanitation personnel in the employ of the Company at its Oklahoma City branch, and, during that period, has had collective-bargaining relations with the concern affecting such employees.3 2 Section 8(a) (3) prohibits "discrimination in regard to hire or tenure of employ- ment . . . to discourage or encourage membership in a labor organization," but the pro- hibition is subject to a proviso which, to the extent material here, provides that "nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later. . . " Section 8(b) (2) makes It an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee" in viola- tion of Section 8(a)(3) or "to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the Initiation fees uniformly required as a condition of acquiring or retaining membership." Section '8(b) (1) (A) prohibits labor organizations or their agents from restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. "The issues in this proceeding are unaffected by the fact that the Union was formerly affiliated with an organization named Bakery and Confectionery Workers' International ,Union of America , and changed its name and affiliation ( apparently in 1958 ) to those now 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 8, 1959, the Union called a strike at the Oklahoma City plant with the object of securing "a new contract." The strike ended on May 23, 1959, with the execution, on that date, of a so-called "memorandum agreement" between the Union and the Company (as well as other employers not involved in this proceed- ing) affecting baking and sanitation employees, among others. The instrument was of a provisional nature, for, as its terms and other evidence make clear, it was the intention of the parties to use it as their agreement pending the drafting and execu- tion of "a new contract form." Such "a new contract" was executed on July 31, 1959, and, by its terms (article 17), made effective from the date of execution until at least May 1, 1961. The instrument contains provisions for union membership which, to the extent germane here, provide: "A non-union worker may be employed, but such person must become a member of Local 173 [the Union] not later than the end of thirty . . . days from the commencement of employment and shall remain in good standing there- after, and upon failure to do so shall be discharged." The General Counsel does not challenge the legality of the quoted provisions and one may assume, for the purposes of this proceeding, that they conform to the requirements of the first proviso of Section 8 (a) (3) of the Act. The memorandum agreement, unlike its successor, does not contain explicit union- security provisions. It does provide that, except as modified by its terms, "the balance of the former contract and rider thereto will be continued in effect," but as such "former" agreements were not produced at the hearing, one is left in the dark, so far as the evidence is concerned, whether the memorandum agreement incorporated any union-security provisions by reference. Nevertheless, judging by the allegations of each of the two complaints involved here, the General Counsel appears to have proceeded upon the premise (in effect adopted, also, in the Re- spondent's answer) that union-membership requirements identical with those of the contract of July 31, 1959, were in effect "at all times material" to the issues, including the effective period of the memorandum agreement. Joe E. Hendrickson, one of the two employees who are the subjects of this pro- ceeding, entered the Company's employ as a sanitation worker on May 12, 1959, during the strike. He was terminated when the strike ended because the "regular employees" returned to work, but was reemployed on May 27, 1959, again as a sanitation worker. In that occupation, he has been subject to the current contract between the Union and the Company, as well as to the memorandum agreement that preceded it 4 Several days after Hendrickson returned to work at the plant, a fellow sanitation employee, Carl Kimberling, who is a member of the Union, asked Hendrickson, in the course of general conversation, whether he was "going to join" the organiza- tion. Hendrickson replied with a vulgar synonym for excreta (obviously a con- temptuous negative answer to Kimberling's inquiry).5 A few days later, on an occasion when A. L. Hendricks, the Union's business agent, came to the plant, Kimberling told Hendricks about the query he had put to Hendrickson and the latter's reply. On June 26, 1959, the 31st day of Hendrickson's second period of employment, Hendricks telephoned Hendrickson's supervisor, Lee Scott, and said that the latter in effect Viewing the evidence as a whole (particularly Respondent's Exhibit No 2), I have no doubt that the Union is the same labor organization as the one preceding the changes See Carpinteria Lemon Association, et al. v. N L.R B , 240 F. 2d 554 (C A. 9) ; Continental Oil Company v. N L.R B., 113 F. 2d 473 (C.A. 10). 4 According to an employee named Carl Kimberling, one of the Union's plant stewards told Hendrickson a day or two after the latter's reemployment that he had 30 days to join the Union. Hendrickson, however, testified that the steward did not talk to him concerning union membership until about June 9, 1959, asking him on that occasion whether he had applied for it. These variances need not be resolved, since the date and content of what the steward said have no operative effect on the results in this proceeding. Similarly, the issues are unaffected by testimony that at about the time Hendrickson was initially hired, the plant's personnel manager told him that he had 30 days in which to join the Union. 5It is substantially undisputed that Kimberling made an inquiry to the effect that he described in his testimony, but Hendrickson entered a denial that he used the vulgar term imputed to him, testifying that about June 20, 1959, "Carl asked me if I had made application to join the union and I told him no." I have accepted Kimberling's version of the conversation because Hendrickson appeared to me to be hostile to the Union (whether with justification or not is beside the point) and, upon my observation of his demeanor and attitude, I think it likely that he would give voice to his hostility, in the setting described by Kimberling , in the manner the latter imputes to him. AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 947 "would have to discharge" Hendrickson because the employee "was one day past" the period in which he should have joined the Union. Scott proposed that Hen- drickson go to the Union's headquarters to apply for membership, and Hendricks replied, ". . . you can send him up but I don't think it will do any good." Later that day, Scott discussed Hendricks' position with the plant's personnel manager, L. W. Hervey, and they concluded that the Union's action was "unfair," and decided that if the organization persisted in its position, Hendrickson would be dis- charged, but reemployed "on the following day" in order to provide him with anothor opportunity to apply for membership in the Union during a 30-day period after the beginning of an employments On the afternoon of June 26, also, following Hendricks' conversation with Scott, Hendrickson, at his supervisor's suggestion, went to the Union's office where he saw Hendricks and told the latter that he wished to join the Union. The business agent replied that under the organization's "rule," Hendrickson had 30 days from his date of hire to join, that 31 days had elapsed, and that the Union's executive board had taken the position that Hendrickson should be discharged. Hendrickson re- iterated his wish "to get straightened out," and Hendricks said that he would submit the matter to the executive board, and suggested that Hendrickson communicate with him on the following day. During the course of the conversation, Hendricks told Hendrickson that the Union's initiation fee was $45 and that, if permitted to join, his accrued dues would be $8 (at a rate of $4 per month), and Hendrickson, who had $80 on his person, said he had enough money with him to join the Union. The business agent replied that he could not accept any money since the Union had taken the position that Hendrickson should be discharged.? Hendrickson returned to the plant directly from the Union's office and reported the upshot of his talk with Hendricks to Scott. The latter then told Hendrickson that he would be discharged as of the end of his shift that day so that he could apply to the Company for reemployment and, as Hendrickson put it in his testi- mony, "try and join the union in the coming 30 days again." Scott suggested that Hendrickson call him on the following day after ascertaining the decision of the Union's executive board. It may be noted that Hendrickson was not scheduled to work on the next day, Saturday, June 27, in any event, as it was his regular day off. Hendrickson called Hendricks on June 27, as the business agent had suggested, and the latter told him that the Union's executive board had decided not to accept his application. Hendrickson then called Scott and reported what Hendricks had said, and Scott thereupon instructed Hendrickson to report for work on the following day, June 28. Hendrickson complied, reporting for work at his customary hour, thus losing no time from his work as a result of the Union's demand for his discharge, or of the termination notification he received from Scott on June 26. He was still in the Company's employ at the time of the hearing in this proceeding. On July 1, 1959, Hendricks again asked Scott to discharge Hendrickson. Scott rejected the request, and Hendricks said, in substance, that he would resort to liti- gation to bring about the discharge. On the following day, Hendricks wrote a letter to Hervey to the same effect. On or about July 14, 1959, Hendrickson visited Hendricks at his office and told the business agent that he wished to join the Union in order to retain his job, and Hendricks replied that the question of Hendrickson's status had been referred to the Union's attorney for litigation. 9 There is some vague intimation in Scott's testimony at one point that this decision was reached on June 21, but it is more likely that it was made on June 26, judging by other aspects of Scot's evidence, as well as Hendrickson's testimony The latter, it may be noted, in effect quotes Scott as informing him of the decision on the afternoon of June 26, following his return to the plant from a visit to the Umon's office. I Contrary to testimony by Hendrickson, Hendricks claims that the former said nothing "about having any money." I do not credit the business agent's testimony in that regard. For one thing, Hendrickson was forewarned by Scott, as both testified, to take "as much as $50" with him, and I think it plausible, particularly with Scott' s admonition as a background, that Hendrickson would implement his oral application to Hendricks with a statement that he had enough funds on his person to meet the Union's dues and fee requirements. For another matter, Hendricks appeared to me to be an evasive witness at various points, as when, for example, he professed not to know the meaning of the term "strikebreakers," although he has been the Union's business agent for about 12 years. Also, as regards Hendricks' credibility, it is noteworthy that a denial by him that he asked Scott to discharge Hendrickson a few days after the demand of June 26 is in effect contradicted by a letter dated July 2, 1959, written by Hendricks, in which he alludes to the fact that he asked Scott to discharge Hendrickson on the previous day. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 15, 1959, the Union instituted an action against the Company in the District Court for Oklahoma County, Oklahoma, alleging, in brief, that the Company was employing Hendrickson in contravention of the memorandum agreement of May 23, 1959, and petitioning the court for "a temporary restraining order and a permanent injunction restraining the defendant company from continuing" Hendrick- son in its employ. On August 4, 1959, the court heard argument on a motion by the Union for "a temporary injunction" directing the Company to discharge Hendrick- son, and entered an order denying the application. On August 4, also, Hendrickson sent the Union a letter requesting membership in the organization, transmitting therewith a money order in the sum of $61 as payment of the required initiation fee and dues for a 4-month period. Hendricks returned the money order and letter to Hendrickson at the plant 2 days later, stating that he did not want them. Another money order, this time for $8, representing dues for the months of September and October 1959, sent to the Union by Hendrickson through the mail on October 24, was similarly returned by the business agent shortly after its receipt, with a remark to the same effect as that made on the prior occasion. Ronald C. Bruce, the other employee who is a subject of this proceeding, entered the Company's employ at the Oklahoma City plant on April 20, 1959, and was so employed at the time the strike began. Abstaining from working at the plant during the strike, he resumed his duties upon its conclusion. As in Hendrickson's case, it is undisputed that the memorandum agreement was applicable to Bruce, and that he has been subject to the terms of the current contract since its execution. On two occasions in or about the second week in June 1959, Bruce went to the Union's office with a view to joining the organization but found no one there. He went there once again on or about June 26, 1959, and this time spoke to Hendricks, telling the business agent that he wished to join the Union, and that he had begun his employment with the Company on April 20, 1959. Hendricks consulted a calendar and remarked that Bruce's application was "overdue." Bruce explained that he could not come to the Union's office whenever he desired, and that he had been there previously, but had found no one there. In the course of the discussion that followed, Bruce told Hendricks that he had enough funds on his person to pay the Union's initiation fee of $45 and a month's dues, but Hendricks, expressing regret and reiterating that Bruce was "overdue," stated that he could not permit Bruce to join the organization. The business agent said, however, that he would submit the matter to the Union's executive board, and notify Bruce of the result. About a week or two later, Bruce called on Hendricks at the Union's office to inquire whether the executive board had taken any action on his request, and the business agent told him that he had had no opportunity to place the matter before the group. Bruce said that he still had the necessary funds and reiterated his wish to join the Union. The upshot of the discussion was that Hendricks assured Bruce that the latter would be informed of the executive board's attitude "in about a week or so," and told the employee to "keep on working." In or about the first week in July 1959, the Union made a request of the Com- pany that Bruce be laid off .8 The Company did not comply. Shortly after the request, the Union's executive board considered Bruce's application for membership and decided to reject it. Thereafter, on July 28, 1959, Hendricks came to the plant and notified Bruce of the executive board's action; told the employee that he would "have to be out" of the plant by July 31 (or, in other words, directed Bruce to quit his job by that date); and made an offer to Bruce to help him find a job with another baking company, if he so desired, inviting Bruce to come to the Union's headquarters for such a purpose at any time he wished.9 Or the following day, Bruce informed Hervey of Hendricks' demand, and the pers -nnel manager told Bruce that he could "keep on working," and would not be discharged. That day, also, in the course of a telephone conversation with Hendricks, Hervey expressed the view that the business agent had "demanded and [was] demanding" Bruce's dismissal, and Hendricks agreed that such was the case. 8 The request was apparently made by telephone. Hendricks' testimony, which describes the call, does not identify the management representative to whom the request was submitted. 9 Hendricks denied that he made a "demand" of Bruce that the latter quit, stating that what he did was to try to induce Bruce "to simplify things by going to work in another bakery," and that he offered to try to find Bruce another job. I have based findings on Bruce's version of the conversation because of shortcomings in Hendricks' testimony, to which earlier reference has been made. In any case, the results in this proceeding are the same, whichever version of the conversation one accepts. AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 949 Then, pointing out that Bruce had tried to join the Union several times, that Hendricks had offered to help him get a job in another bakery, and that the Com- pany was satisfied with Bruce and his work, Hervey stated that he could not under- stand the Union's position, and, in effect, proposed that Bruce be allowed to continue in the Company's employ. Hendricks "would not" commit himself on the pro- posal, and Hervey thereupon informed the business agent that he had told Bruce "to continue to work." On August 5, 1959, Bruce wrote a letter to the Union, requesting membership in the organization and transmitting a money order for $57 as a tender of payment of the Union's initiation fee and accrued dues. Two days later, Hendricks, who had received the letter, came to the plant and returned the money order to Bruce, stating that he could not accept it and that he had nothing against Bruce, but if the latter were admitted to the Union, the organization would have "to let these other guys in." On this occasion, also, Hendricks renewed his offer to help Bruce secure employment at another baking company. Bruce has not accepted the offer, and at the time of the hearing in this proceeding was still in the Company's employ. B. Discussion of the issues and concluding findings As the Supreme Court has pointed out, ". . an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso [of Section 8(a)(3) of the Act] are met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing is condoned" (Radio Officers' Union etc. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 41-42). And the statutory corollary of this, prescribed by Section 8(b) (2), is that an "attempt" by a labor organization "to cause" such pro- hibited discrimination is unlawful. At the threshold of the application of these principles to the issues here, one meets the question whether any of the requests or demands upon the Company for the discharge of Hendrickson and Bruce amounted to an "attempt" to cause the dis- charge as the quoted phrase is used in Section 8(b)(2). Reading the statutory language in the light of its legislative history, the Board has held that "Congress did not intend Section 8(b) (2) to reach all means by which a union may seek to procure illegal discrimination" (Denver Building & Construction Trades Council, 90 NLRB 1768, 1781); and that a union's request for such discrimination, without more, is an "attempt to persuade," rather than an "attempt to cause" it, is thus within the protective reach of Section 8(c) of the Act, and hence not proscribed by Section 8(b)(2). As I am bound by this construction, I must hold that whether or not the Union had a contractual right to seek Bruce's discharge, inasmuch as its steps to procure it did not go beyond noncoercive requests or demands of the Company, its conduct in the premises did not fall within the purview of Section 8(b)(2).10 Accordingly, I shall recommend that the Board dismiss the complaint in Case No. 16-CB-149 (which contains the allegations of unlawful attempts to cause Bruce's discharge) Hendrickson's case stands on a different footing. The Union implemented its demands for his discharge with a lawsuit designed to bring it about. The applica- tion for "a temporary injunction" was palpably no mere "attempt to persuade" the Company, but, rather an effort to compel the dismissal through the coercive reach of the injunctive process. It is immaterial that the instrument the Union sought to employ to achieve its goal was a judicial proceeding, or that the application failed of its purpose, nor would it be germane to embark upon any consideration of the court's jurisdiction (which the Company questioned in the district court proceed- ing). It is enough that the application to the court sought to compel the discharge on the ground that Hendrickson was not a member of the Union, contrary to alleged contractual rights of the organization. Thus. I hold, the motion was an "attempt" within the meaning of that term as used in Section 8(b) (2).11 10 Denver Building & Construction Trades Council, supra; Carrier Corporation, 112 NLRB 1385, 1386 Each of these cases, dealt, among other matters, with a demand or request of an employer by a union that the former discharge employees who were not members of the organization and hire individuals who held membership. I can see no material difference, on principle, between such conduct and noncoercive requests or de- mands by a union, as in Bruce's case, that an employee be discharged because he is not a member of the labor organization. 11 In view of the conclusion reached regarding the motion for "a temporary injunction," I see no need to consider or decide whether the mere filing of the "petition" by which 577684-61-vol. 128-----61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As regards that attempt, the remaining question is whether the Union's conduct was immunized by the contract then in effect between it and the Company. Assum- ing for discussion purposes, at least, that a valid union-security agreement was in effect at the time the attempt was made, the Umon, under well-settled doctrine, could not lawfully utilize it for some other goal than to secure payment of permissible initiation fees and dues.12 Bearing in mind that Hendrickson worked during the strike, and that his obviously contemptuous negative reply to Kimberling's query whether he intended to join the Union was admittedly reported to Hendricks, there is good reason to conclude that the organization sought Hendrickson's discharge as a reprisal for what it regarded as his hostility toward it rather than for the legitimate ends of union security. Substantial support for that conclusion is to be found in the disparate ways in which it treated Hendrickson. Perhaps the most outstanding feature of the evidence in that regard is that the 30th day of Hendrickson's period of employment after the strike had barely expired when Hendricks called Scott and demanded that Hendrickson be discharged; and that, significantly enough, the business agent had never before shown comparable celerity in seeking the dismissal of employees who had delayed applying for membership in the Union. Indeed, some 40 days after an individual named Carl Buck entered the Company's employ at the Oklahoma City plant (following the strike), Hendricks told Buck to join the Union and accepted an application from him, and part payment of an initiation fee, on the following day, receiving the balance of the fee a few days later when Buck was initiated into membership. It is a matter of some interest, to say the least, that Hendricks accepted the application only the day before the Union filed its suit to compel the Company to discharge Hendrickson who had offered to pay an initiation fee and accrued dues in full on the 31st day of his second period of employment. To be sure, Hendricks refused to accept an application from Bruce, but the evidence pertaining to that employee, who, it will be recalled, abstained from work- ing at the plant during the strike, only emphasizes the disparity of treatment ac- corded Hendrickson. In fact, particularly bearing in mind that Bruce and Hendrick- son first applied for membership to Hendricks about the same date, there is good reason to believe that Bruce's application was rejected not because it was late but to put a surface gloss of equality of treatment on the Union's rejection of Hendrickson's application. An indication of such a purpose may be found in the business agent's statement to Bruce, in returning the latter's money order in August, that his admission to membership would open the door to "the other guys." The "guys" obviously included Hendrickson, and, indeed, one may doubt that it meant anybody else, for there is no evidence that any employee other than Hendrickson and Bruce was then "overdue" in applying for membership. It is also noteworthy that in contrast to the attitude shown Hendrickson, Hendricks offered to help Bruce find another job, inviting him to come to the Union's office for that purpose at any time, and repeating the offer when the money order was returned. Finally, any doubt about the conclusion that the rejection of Bruce's application for membership was designed to serve the ends of strategy rather than those of union security is dispelled by the clear evidence that the Union has been markedly passive in its attitude toward Bruce's retention by the Company, in striking contrast to its vigorous efforts to secure Hendrickson's dismissal. Actually, so far as appears, after the Union's executive board rejected Bruce's application, the only direct indication the Union gave the Company that it desired Bruce's discharge amounted to nothing more than agreement by Hendricks with an observation by Hervey, made during the course of a telephone conversation initiated by Hervey, that the business agent had "demanded and [was] demanding" the discharge. Unlike Hendrickson's case, there has been no formal letter demanding Bruce's dismissal, and no litigation, or intima- tions thereof, to enforce any such demand. Indeed, the absence of any reference to Bruce in the Oklahoma County District Court proceeding is of itself revealing evidence of the division the Union has made between its attitude toward Bruce and that toward Hendrickson. In the perspective of the whole record, notwithstanding a disclaimer by Hendricks that he was aware that Hendrickson worked during the strike, I am impelled to the conclusion, and find, that the Union has used its purported contractual rights as a pretext for its attempt to secure Hendrickson's discharge, and that the real reasons the action was begun in the Oklahoma County District Court constituted an "attempt," or whether that term may be applied to the intimation by Hendricks to Scott on July 1, and in the Union's letter of July 2, to the effect that the Union would resort to litigation to bring about Hendrickson's dismissal. 12 Radtio Officers' Union etc. v. N.L R.B., supra, at pp. 41-42 ; Mark R: Kunkel, an ind vidual d/b/a Mark R. Kunkel Plumbing, 119 NLRB 1623, 1634, and cases cited. AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC . 951 were his employment during the strike, and his expression of a contemptuous attitude toward the Union on the occasion when Kimberling asked him if he intended to join the organization. Either reason was unlawful, irrespective of the existence of the contractual rights the Union has asserted. Thus, by attempting to cause Hendrickson's discharge, as found above, the Union violated Section 8(b)(2) of the Act, and thereby restrained and coerced employees in the exercise of rights guaran- teed them by Section 7 of the statute, thus violating Section 8(b) (1) (A) of the Act.13 The General Counsel takes the position, in effect, that the Union additionally violated Section 8(b) (2) by causing the Company to discharge Hendrickson. That, in turn, raises a question whether the termination notice given Hendrickson by Scott, as a preface to the former's rehire the next day in order to enable him to "try and join" the Union again in the "coming 30 days," was actually a discharge in response to the Union's demand, or whether it was but a token dismissal to test the reach of the contractual rights and obligations involved. Bearing in mind that Hendrickson lost no pay as a result of the alleged discharge, and in view of the scope of the remedy to be recommended below, I think that it would be but an idle task to pass on the claim, and believe it the better part of wisdom to reserve resolution of the problems it raises for another time and another case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE Some activities of the Union set forth in section III, above, occurring in connec- tion with the operations of the Company 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 As it has been found that the Union has engaged in -unfair labor practices violative of Section 8(b)(1)(A) and 8(b)(2) of the Act, I shall recommend that the Union cease and desist from engaging in such conduct and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union did not commit the unfair labor practices imputed to it in the complaint in Case No. 16-CB-149, I shall recommend that the allegations of that complaint be dismissed. Upon the basis of the foregoing findings of fact, and of the entire record of this proceeding, I make the following conclusions of law: CONCLUSIONS OF LAW 1. American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173 is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2(5) of the Act. 2. Continental Baking Company, Inc. is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2) of the Act. 3. By attempting to cause Continental Baking Company, Inc., to discriminate against Joe E. Hendrickson in violation of Section 8(a)(3) of the Act, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Union has not committed the unfair labor practices imputed to it in the complaint in Case No. 16-CB-149. [Recommendations omitted from publication.] 13 The General Counsel and the Company take the position that Hendrickson In effect made a proper tender of an initiation fee and dues, and, citing such cases as Aluminum Workers International Union, etc. (The Metal Ware Corporation), 112 NLRB 619, they argue at some length that the Union had no right to attempt to secure Hendrickson's dismissal, after such a tender, on the basis of any union-security agreement. However, It is unnecessary to consider that position or to explore a contrary one in The Interna- tional Association of Machinists etc. (New Britain Maehirui Co.) v. N.L.R.B., 247 F. 2d 414 (CA 2), for the record would require a holding, for the reasons noted, that the attempt to cause Hendrickson's discharge, as found above, was unlawful even if he had never made a tender of an initiation fee and accrued dues , or otherwise tried to join the Union.