I. Oscherwitz and Sons

1078 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD Max B. Oscherwitz, Bernard Oscherwitz and Millard S. Oscher- - witz, co-partners doing business as I. Oscherwitz and Sons and Ruth Dirr Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7 and Ruth Dirr. Cases Nos. 9-CA165.2 and,9-CB-764. March 2, 1961 DECISION AND ORDER On January 29, 1960, Trial Examiner Eugene Dixon issued his Intermediate Report in the above-entitled 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 Respondents filed exceptions to the Intermediate Report and supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except to the extent inconsistent with our Decision herein. 1. We agree with the Trial Examiner that Respondent Employer violated Section 8 (a) (1), (2), and (3) and Respondent Union violated Section 8(b) (1) (A) and .(2) by maintaining an unlawful union- security provision in their bargaining contract. In March 1947, Respondent Employer and Local 123, Meat Cutters, a predecessor of Respondent Union, executed a 1-year agreement which provided for renewal annually thereafter upon renegotiation by the parties. Article 1, section 2, of the agreement provided that "As a condition of employment, all employees subject to and covered by this agreement must be members and remain members in good standing with the Amalgamated Meat Cutters and Butcher Workmen of North America, Local 123." In 1950, Local 123 merged with another local to form Local 7, the Respondent Union herein, which thereupon orally adopted the 1947 agreement, as amended to that date. Since 1950, all further modifications and supplements to the basic agreement have also been agreed to orally. The Respondents contend that the illegal closed-shop clause set out above has not been included in any of their oral agreements since 1950 and that, as a matter of fact, the agreement and their practice thereunder allows all new employees a 30-day grace period in which to join the Union. We find, however, that by virtue of successive 130 NLRB No. 118. I. OSCHERWITZ AND SONS 1079 renegotiations the original' agreement has never been allowed to ex- pire. The parties have never formally rescinded or terminated the written agreement, and their course of dealings over-the past years in relying on unmodified provisions of the 1947 agreement for such sub- stantive matters as arbitration-,of grievances, computation of overtime, and the date for contract reopenings satisfy us that the parties never intended to abandon completely their adherence to the basic document -which' evidences their agreement. We do not believe, therefore, that a parol modification of the illegal clause contained in that agreement, even if fully substantiated, and without regard to whether the clause has been enforced or not, removes the inherently coercive effect which such a provision has upon the rights of employees guaranteed to them by Section 7 of the Act. In so maintaining an unlawful union- "security clause, the Respondents have continued to violate Section '8(a) (1), (2), and (3) and Section 8(b) (1) (A) and (2) of the Act.' As we have also found that the Respondent Union has been unlaw-- -fully assisted by the maintenance of the illegal union-security clause -in its contract with the Employer, we shall order the Respondent Em- -ployer to withdraw recognition from the Respondent Union until it has been certified by the Board. However, we do not agree with the Trial Examiner that restitution of dues to all employees is required to .remedy the violations here, since the Union did not control the hiring ,of employees and since, despite the illegal clause, all employees were in fact given the requisite 30-day grace period within which to join the Union? 2. The Trial Examiner also found that the Employer had violated Section 8(a.) (3) and (1) by discharging employee Ruth Dirr. The Employer excepts to this finding on the ground that the Board should honor the arbitrator's award which upheld the discharge. We find merit in the Employer's exception. In Spielberg Manufacturing Company,3 the Board held that it is within its discretion to recognize an arbitration award, and to decline to assert its jurisdiction when a dispute involving an alleged unfair labor practice had been submitted to arbitration. The Board indi- ^cated in Spielberg that it would honor an award if the arbitration proceeding was fair and regular, all parties agreed to be bound by the :award, and the award was not repugnant to the purposes and policies of the Act. We find, contrary to the Trial Examiner, that the arbi- tration proceeding over Dirr's discharge meets these criteria. 'Imperial Wire Company, Inc., 118 NLRB 775; Carty Heating Corporation, et ai., 117 NLRB 1417; Jersey Contracting Corp., 112 NLRB 660. 2 Local 569, United Packinghouse Workers of America, AFL-CIO (Frank Jaworaki Sausage Company ), 126 NLRB 870. Member Rodgers would adopt the Trial Examiner's recommendation that the Respond- ents reimburse the employees for the union dues collected by the Union . See Chun King .Sales, Inc., 126 NLRB 851. 8112 NLRB 1080. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two or three days after her discharge in November 1958, and more than a month before she filed a charge, the Employer, Union, and Dirr voluntarily agreed to submit the issue of her discharge to the decision of an arbitrator. The arbitrator, who testified at the hearing in this case, stated that Dirr was represented by competent union offi- cials and that she was not only afforded ample opportunity to testify, but also actively participated in the proceeding. The arbitrator's decision is not clearly repugnant to the policies of the Act, and in view of the voluntary submission to arbitration and the fairness with which the proceeding was conducted, we believe that it would best serve to foster the voluntary settlement of labor disputes by recognizing the award.' Accordingly, we do not adopt the Trial Examiner's finding. that the Employer violated Section 8(a) (3) and (1) by discharging Dirr. 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, Max B. Oscherwitz, Bernard Oscher- witz and Millard S. Oscherwitz, co-partners . doing 'business as 1. Oscherwitz and Sons, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving effect to, performing, or in any way enforcing the agree- ment of March 12, 1947, with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7, or entering into any extension, renewal, modification or supplement thereto, or in any other contract, unless and until that labor organization shall be duly certified by the National Labor Relations Board as the representative of the employees. (b) 'Threatening employees with discharge because of their union activity or because they have refused to pay union dues they are not legally required to pay. (c) In any other manner interfering with, restraining, or coercing employees in the right to engage in or refrain from engaging in any or all of the activities guaranteed them by Section 7 of the National Labor Relations Act, as amended, except to the extent that such right might be affected by an agreement requiring membership in a labor organization as a condition of employment executed in conformity with Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' In so doing, we do not decide whether we would agree with the reasons the arbitrator, or the Trial Examiner , found were the cause of the discharge. I. OSCHERWITZ AND SONS 1081 (a) Withdraw and withhold all recognition from Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7, or any successor thereto, as the collective-bargaining rep- resentative of its employees unless and until said Union has been duly certified by the National Labor Relations Board as the exclusive rep- resentative of such employees. (b) Post at its place of business in Cincinnati, Ohio, copies of the notice attached hereto marked "Appendix A." 5 Copies of said notice to be ' furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent Company, be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable .steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same place and under the same conditions as set .forth in (b), above, and as soon as they are. forwarded by the Re- gional Director, copies of Respondent Union's notice attached hereto marked "Appendix B." (d) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7, Cin- cinnati, Ohio, its officers, representatives, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Giving effect to, performing, or in any way enforcing the agreement of March 12, 1947, with I. Oscherwitz and Sons, on enter- ing into any extension, renewal, modification, or supplement thereto, or in any other contract, unless and until said labor organization shall have been duly certified by the National Labor Relations Board as the representative of said employees. (b) Restraining or coercing the employees of I. Oscherwitz and Sons in the right to engage in or refrain from engaging in any or all of the activities guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment executed in conformity with Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 11 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." 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its offices and meeting, halls in Cincinnati, Ohio, copies of the notices attached hereto marked "Appendix A" and "Appendix B." ° Copies of said notices, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Local No. 7's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the said Regional Director signed copies of "Appendix B" for posting by Respondent Company at its place of business in Cincinnati, Ohio, as provided herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by Respondent Local No. 7's representative, be forthwith returned to the Regional Director for disposition by him. (c) Notify said Regional Director for the Ninth Region, in writ- ing, within 10 days from the date of this Order, what steps Respond- ent Local No. 7 has taken to comply herewith. MEMBER KIMBALL, concurring in part and dissenting in part : I concur in the result- reached by the majority that the Respondents engaged in certain unfair labor practices and in the remedy the ma- -jority finds is necessary to remedy these practices.. I also agree, that the Employer did not violate Section 8(a) (3) and (1) by discharg- ing Dirr. However, :on finding that there was no discriminatory dis- charge I rely on the record evidence and not on the basis of an arbi- tration award outside the processes of the Board. I do not believe that a disputed allegation- of an unfair labor practice involving the public interest can be settled in private proceedings. . The majority relies on the arbitrator's award that upheld the Employer's right to discharge Dirr. The majority opinion cites as authoritative the decision in Spielberg Manufacturing Company, 112 NLRB 1080. I am unable to agree with the decision in that case. However great my desire to have parties adjust their, differences by resort to arbitration in areas where such a proceeding is allowable. I do not believe it within the province of the Board to subdelegate to such a tribunal (an arbitrator) its exclusive jurisdiction "to prevent any person from engaging in any unfair labor practice listed in Sec- tion 8 affecting commerce." In the- Spielberg case the Board held that it was within its discre- tion to recognize an arbitration award and to decline to assert its- jurisdiction when a dispute involving an alleged unfair labor practice had been submitted to arbitration. In that case the Board held that it would honor such .an award if it' were the result of a proceeding 6 See footnote 5, supra. I. OSCHERWITZ AND SONS 1083 fair and regular in which all parties agreed to be bound thereby, and if such an award was not repugnant to the purposes and policies of the Act. Section 10 (a) of the Act provides that the Board's power to pre- vent unfair labor practices affecting commerce "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Section 10 (a) thereafter contains the following proviso : ... Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute: applicable to the determination of such cases by such agency is inconsistent with the correspond- ing provision of this Act or has received -a construction incon- sistent- therewith. As I read Section 10(a), I believe it has been clearly expressed by the Congress that the Board, and the Board alone, has been commis- sioned, to adjudicate and remedy unfair labor practices. As the Supreme Court in National Licorice Company v. N.L.R.B., 309 U.S. 350, so aptly expressed it : The'Board acts- in a public capacity to. give effect to the declared public policy: of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining and by protecting the "exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment." . . . The immediate object of the proceed- ing is to prevent unfair labor practices, which, as defined by 7, 8, are practices tending to thwart the declared policy of . the Act. . . . The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices. . . . Congress, having set forth as a matter of public policy the substan- tive rights in Section 7 which it thought necessary to be protected in order to eliminate disputes which burden and obstruct the free flow of commerce, in my opinion, not only clearly intended to vest exclusive jurisdiction in the Board to .adjudicate such alleged unfair labor practices but did not intend to authorize the Board to subdelegate this 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD function by recognizing any private arrangement or agreement of the parties, including arbitration. If the rights so granted are public in nature and the disregard of such rights constitutes a public wrong, it is inconceivable to me that Congress, having set up an agency- especially designed to enforce such rights in the public interest, nevertheless granted to that agency the authority to subdelegate to nongovernmental private tribunals the obligations which the. Congress imposed upon it. Furthermore, this Board has long maintained that its overall juris- diction is exclusive in nature so that even State governmental agen- cies normally are without jurisdiction to entertain charges or adjudi- cate unfair labor practices in the jurisdictional domain allotted to it by the Congress. The propriety of this conclusion is borne out by the fact that the amendatory legislation known as the Taft-Hartley Act, in providing a certain limited right of delegation, restricts that right to the specific subdelegation of jurisdiction to agencies of any State or Territory in instances where the substantive provisions of the applicable State statute are consistent with the corresponding provi- sions of the National Act, and have not received a construction in- consistent therewith. . It is a familiar rule of statutory construction that when the Legis- lature has carved out of a general grant of jurisdiction a particular right to subdelegate a portion of that jurisdiction, such right to sub- delegate is exclusive of all other means. I am thus forced to conclude that the measure of the Board's right to subdelegate a portion of its jurisdiction is that contained in the cession provision of Section 10 (a). There is a further reason which impels me to the conclusion that the Board's subdelegation of its decisions to the procedures of arbitra- tion is in excess of its statutory authority. In the National Licorice case the Supreme Court cited with approval Amalgamated Utility Workers v. Consolidated Edison, 309 U.S. 261, and held that- The proceeding authorized to be taken by the Board under the National Labor Relations Act is not for the adjudication of private rights. It is thus clear that the rights guaranteed in the Act, although they may be asserted by an individual alleged to have been discriminated against under the Act, do not vest in that individual any private right, for he is but the representative of the class of employees (see Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177) whose interests have been offended by the statutory violation, and thus is possessed only of a derivative right which is public in nature and not private. Applying these principles, I am forced to the conclusion that it is not within the province of an employee, or an applicant for employ- ment, by waiver to submit his case to arbitration and thereby - to I. OSCHERWITZ AND SONS 1085 authorize the Board to honor the award made in such' proceeding if such proceeding involves the adjudication of an unfair labor practice under the statute. The doctrine of waiver, from its nature, applies ordinarily to all rights or privileges to which a person is legally entitled, provided such rights or privileges belong to the individual and are intended solely for his benefit. However- Where a law seeks to protect the public as well as the individual, such protection to the State cannot, at will be waived by. any individual, an integral part thereof. The public good is entitled to protection and consideration; and if, in order to effectuate that object there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good. (56 Am. Jur., pp. 105-106, Section 4.) For the reasons set forth above, I am unable to concur in so much of the Board's decision in the instant case as relies upon the doctrine of the Spielberg case. In sum, I believe that (1) the Board is not authorized to subdelegate to, arbitration its exclusive jurisdiction to prevent unfair labor practices which affect commerce; (2) it is not within the province of an individual alleged to have been discrimi- nated against to waive his statutory right to file a charge and submit his case exclusively to arbitration; and (3) the substantive rights guaranteed in Section 7 were intended by Congress to carry with them the exclusive statutory remedies which the Board, and the Board alone, in the public interest is commissioned to apply. Turning now to an examination of the record, I find that Dirr was discharged in the course of a grievance proceeding over whether an employee was entitled to overtime. During the proceeding she raised the issue of whether the existing collective-bargaining agreement of the Company and the Union was open for negotiations. A heated dis- cussion ensued and Dirr was discharged for calling the Company's president a "liar." The Trial Examiner found that the Company had used the occasion as a "pretext" to discharge Dirr because it was dis- pleased with her activities as shop steward, thereby violating 8 (a) (3). I do not agree. It appears anomalous to find, as did the Trial Examiner, that'an employer who had a "kindly attitude toward its employees," including Dirr, would also be one who surreptitiously waited for a pretext to discharge her. However, assuming as did the Trial Examiner that the Employer discharged Dirr because it was displeased with her activi- ties as steward, it is noted that her activities stemmed, in the main, from her agitation for a new agreement at a time when she knew, by 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her own admission, that the existing contract between the Company and Union was not open for negotiations. Furthermore, the Federal Mediation and Conciliation Service had even forestalled a strike sanctioned by the union members because the Union's demands for a new contract were at an inappropriate time. In these circumstances, it clearly would be an anomaly to encourage parties to enter into a collective-bargaining agreement, as the Act does, only to reprimand an employer for discharging an importunate employee who urges a breach of this agreement. I do not believe-that such conduct on the part of an employee is activity which the Act pro- tects. For these reasons, I would not find that the Employer violated Section 8(a) (3) by discharging Ruth Dirr. CHAIRMAN LEEDOM 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 give effect to, perform, or in any way enforce our agreement of March 12, 1947, with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7, or enter into any extension, renewal, modification, or supplement thereto, or any other contract, unless and until that labor organi- zation shall be duly . certified by the National Labor Relations Board as the representative of our employees. WE WILL withdraw and withhold all recognition from Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 7, or any successor thereto, as the collective- bargaining representative of our employees, unless and until said Local No. 7'shall have been duly certified by the National Labor Relations Board as the. representative of our employees. WE WILL NOT threaten our employees with discharge because of their union activity or because they have refused to pay union dues they are not legally required to pay. WE WILL NOT in any other manner interfere with,' restrain, or coerce our employees in the right-to engage 'in or refrain from en= gaging in any or all of the activities guaranteed them by Section 7 of the National Labor Relations Act, as- amended, 'except to the extent that such right might be affected by an agreement requiring membership in labor organization as a condition of employment executed in. conformity with Section 8 (a) (3) of 'the-Act. I. OSCHERWITZ AND SONS 1087 All 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 executed in conformity with Section 8 (a) (3) of the Act. 1. OSCHERWITZ AND SONS, 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 OF AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL No. 7, AND TO ALL EMPLOYEES OF I. OSCHERWITZ AND SONS 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 give effect to, perform, or in any way enforce our agreement of March 12, 1947, with I. Oscherwitz and Sons, or enter into any extension, renewal, modification, or supplement thereto, or any other contract, unless and until our labor organiza- tion shall have been duly certified by the National Labor Relations Board as the representative of said employees. ' WE WILL NOT restrain or coerce the employees of I. Oscherwitz and Sons in the right to engage in or refrain from engaging in any or all of the activities guaranteed .them by Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment executed inconformity with Section 8(a) (3) of the Act. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL No. 7, 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 STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard at Cincinnati , Ohio, on August 11 and 1088 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD 12, 1959, pursuant to due notice with all parties represented by counsel. The con- solidated complaint issued on June 16, 1955, by the General Counsel of the Na- tional Labor Relations "Board, herein called the General Counsel and the Board, and based on charges duly filed and served, alleged that Respondents had engaged in unfair labor practices proscribed by Section 8(b) (2) and (1) (A) and Section 8(a)(1), (2), and (3) of the Act. The charges against the Company in substance were that various officials of the Company had threatened the discharge of Ruth Dirr because of her activities as union steward and finally discharged her for that reason; that the Company main- tained and enforced a contract and hiring practice requiring membership in the. Union as a condition of employment and continued employment and required all employees to pay union dues, initiation fees, and assessments as a condition of em- ployment and collected such union dues and threatened the employees with discharge for their nonpayment. The substance of the allegations pertaining to the Union's. violations were the maintenance and enforcement of the above contract and hiring practice and the collection of dues and initiation fees pursuant to it. In their answers both Respond- ents deny the commission of any unfair labor practice. The Company's answer admits that Dirr was discharged but alleges that the discharge was "because of her abusive, indecent, and insulting language used toward the president of Respondent." While there is some. question as to the effect of the Respondent Union's answer, since it was filed by the Union's president and not an attorney, I shall treat it as a general denial. . Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS The Respondent Company is engaged in the business of processing and manufao- turing sausage and other meat products at its plant in Cincinnati, Ohio. During the 12 months preceding the issuance of the complaint, which is a representative period, the Company shipped products of a value in excess of $50,000, to points outside the State of Ohio. During the same period, it received materials and supplies of a value in excess of $50,000, which were shipped to it directly from points outside of the. said State. Respondent admits and I find that at all times material herein the Company has been engaged and is engaged in commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is now and has been, at all times material herein, a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In 1957, Respondent Company entered into a collective-bargaining agreement with Amalgamated Meat Cutters and Butcher Workmen of North America and its Local Union 123. The agreement was effective from March 1, 1947, to March 1, 1948, and from year to year thereafter with a 30-day modification clause. In 1950, Local 123 merged with Local 610 and Local 7 was formed which from then has been covered by the 1947 contract provisions except as to oral wage modifications. Re- spondents apparently contend either that this contract has been completely replaced by subsequent oral agreements or that at least the closed-shop provision contained therein 1 has been so replaced. Apart from the fact that the Board will not honor a parole modification such as that (Jersey Contracting Corp., 112 NLRB 660, 662; Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1393) the evi- dence shows the contrary and I so find. Supporting this conclusion are the many references of the Company to and reliance on the original written provisions of the contract and the testimony of the Union's president, William Koester, that in Octo- ber 1958, he told Max Oscherwitz, the Company's president, "that the contract provided that the employees must be members of the Union. . " In a special meeting of the Union in May .1958, Ruth Dirr, the alleged discrimi- natee herein, was elected steward of Respondent's employees. At that time William Koester, the Union's president, was asked if the contract "was open." He indicated 1 Article I, section 2, provides : As a condition of employment, all employees subject to and covered by this agree- ment must be members and remain members in good standing with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 123. I. OSCHERWITZ AND SONS 1089 it "'definitely" was and that he was going to get started on the negotiations immedi- ately. Apparently at this time the employees also voted to strike if necessary to get their demands notwithstanding that the contract contained a no-strike clause. On June 27, Koester called Dirr and told her to list the things the employees wanted in the new contract. She sent him the list over the weekend. The following Mon- day at work she went to the dressing room to get some aspirin. On the way, Milton' Oscherwitz, one of the partners, encountered her. and asked her what she wanted. When she said aspirin for a headache,. he said she did not need an aspirin, she "needed a psychiatrist for all the things she had said in that letter." 2 In the latter part of July or the first part of August, the Company had word that a strike was going to take place. The Company's attorney was able to have the strike called off by his appeal to the United States Conciliation Service and his reli- ance on the no-strike clause in the contract. As for the employees, all they knew about it apparently was that on a Wednesday they were told they were going out on strike on Monday. But on Friday they were told the strike was off because the International would not authorize it. : By early October, the employees had become skeptical of the effectiveness of the representation they were receiving from Koester. Adding to their unhappiness about this time was the fact that the monthly dues had been raised from $4 to $5. There was considerable grumbling' about this increase and some indication that payment of the dues might be resisted. Dirr called Koester and told him some members were refusing to pay their dues because the Union did not have a new contract. According to Koester's testimony he told Dirr they would pay or would not work. He thereupon called Respondent's president, Max Oscherwitz, about the matter saying "that the contract provided that the employees must be members of the Union and that, therefore, must pay their dues." Oscherwitz told him "that he woudl straighten the matter out." 3 According to the credited testimony of several of the employees called as wit- nesses by the General Counsel, Max Oscherwitz told them that if they did not pay their dues they could not continue working. As put by Simon Czerkewics, Oscher- witz said, "You boys don't want to pay your union dues? I have a letter from the Union to fire you because I have got an agreement with the Union." Czerkewics said, "Here is my $5.00." Elmer Smith also proffered his dues as did another em- ployee a few minutes later. Oscherwitz denied asking for the dues. His testimony was that he asked the em, ployees if they had refused to pay and was informed that they had not been asked for payment. He further testified that the three who paid him did so voluntarily and on their own initiative. Nevertheless, he also admitted that when one of the employees, Kessen, told him he was not going to pay his dues he told Kessen, "Do you know what the union will make me do? They will make me fire you if you do not pay your dues." I believe that was the posture in which he approached all the employees. That, of course, was tantamount to a request, and a very effective request, notwithstanding that Kessen did not pay even then. Kessen's undenied and credited comment is apropos at this point. He asked Oscherwitz, "Since when are you collecting union dues?" About 10 minutes 'after Max Oscherwitz took the dues money and had directed that it be given to Din she came "hollering" to the employees for having paid him. It is clear from the record that she was quite upset about the matter. She admitted that she wept about it "because Max had collected the dues and (she) was so mad." This' apparently occurred in the office in the presence of Max and Millard Oscher- witz, Max's son and another partner. According to her testimony, Millard told her at this time that she was "just being a goat for the rest of the people" and that she "would wind up losing (her job) and they would still have theirs." Millard testified that he recalled Dirr coming into the office and sitting on the couch crying. He and his father were very upset. They felt sorry for her and were trying to "calm her down." He told her "not to take things too much to heart:" He also testified, "I possibly could have said that she may be fired. I wouldn't deny that I did.. But I don't recall saying it." I credit Dirr here. 2 Respondent Company apparently would cast some aspersion on Dirr's reliability as a witness by showing 'that in an affidavit she gave the General 'Counsel she had said, "Mr. Milton Oscherwitz was with Mr. Max Oscherwitz, and 'commented to the effect if I expected to get everything I requested, I needed a psychiatrist." 8 Oscherwitz testified that he went to see Koester at his office and told him that he "would look into the matter." 597254-G1-vol. 130-70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to this time, according to Dirr's further testimony, on July 23, Cornelia Ballou, one of the women employees in the, Cryovac room, had to leave her work temporarily and Charles Rickey was assigned to take her place. Dirr and the'other women employees began "teasing him about . working in a girl's place." He went into the office and complained to Max 4 that the girls "were picking on him." Direr further testified: So, I don't know, Max came in and hollered at me and flipped my (steward's) button and said, "Well, could I get you to take over and be boss?" And he said he would say who was going to work in that room and who wasn't. And Milton Oscherwitz turned around and said he didn't think I liked my job and didn't want to work there anymore. And I said, yes, I did. And then Max went over and pushed a chair where Margaret was working on, and twisted it around and said, "Have I ever mistreated you in any way?" And she said, "No." Well, then, Max told me, asked me to go in the.office with him, and I went in the office with him, and, then Milton stayed and talked with the two girls. And Max and I had a nice talk in the office, and he said he could fire me any time for being a troublemaker. And he said he had called the International and they said to fire me, because I was a troublemaker. On cross-examination Dirr testified that in the Cryovac room when he flipped the steward button Max said, "That button don't mean a thing to me." She further testified that it was not in the Cryovac room that Max told her the Internaional had told him he could discharge her: "No sir, that was another time in the office. See, I was in the office quite a few times." She could not recall the date it occurred but remembered that just she and Max were present at the time and that it was not too long before she was dismissed. Ballou testified that she worked part of July 23, the day that Max took Dirr to task for teasing Rickey. According to her testimony, Max "come charging in there . . . and he run up to Ruth and he started talking to her and asking her who gave her authority to be boss in there, that she wasn't allowed to boss anybody around. He also "told 'her that he could let her go at any time for being a troublemaker, she was causing an awful lot of trouble and confusion around there among the people." This trouble, he told her, started when she became a union steward. Ballou further testified that she had not heard Max mention anything about the International on that occasion. Margaret Thomas, besides corroborating Ballou as to the remark Max made about letting Dirr go for being a troublemaker; further testified that Milton was with Max on this occasion and told Dirr, "Well, I guess you don't like your job here." She too testified that she did not hear Max make any. reference to -the International. In his testimony Max denied all of the foregoing. Milton did not testify. I credit the General Counsel's version here. There was no indication whether Max's denials were intended to deny that the Rickey incident occurred at all. However,- the forth- right convincing recital of the incident impressed me as' I heard it as being basically truthful. Accordingly, corroborated as it is against Max's uncorroborated,, flat de- nials I have no difficulty in finding that it actually happened; and having happened, it would seem quite plausible that in his ire Max must have said substantially what. was attributed to him in the Cryovac room .5 Dirr further testified (and was corroborated by Thomas) that before she became steward, the bosses joked with her and teased her. Bernard Oscherwitz, another partner, as much as asked her to dance on one occasion. After she became steward all the joking ceased and the talk then was on business. In any event, Max seldom engaged in any of the levity; he was usually serious and remained in the office most of the time. While Max Oscherwitz denied any change in attitude toward Dirr after. she be- came steward, it appears from Bernard's testimony that he may have been "sub- consciously" less genial with her after she became steward because of a change in-her attitude at that time which he "definitely sensed." According to his testimony, upon assuming the union duties, she became "very smart-alecky and disrespectful and loud in voicing her opinion. . ." She also became very demanding in her relationship with the employees, "bossing the personnel around." * In view of the number of Oscherwitzes involved here I shall henceforth refer to them by their given names. 5 Whether or not Max further told her in the office that the International had indicated its willingness to see her discharged as a troublemaker, I deem it unnecessary to decide. I. OSCHERWITZ AND SONS 1091 It further appears from Bernard's testimony that his relationship with the em- ployees was "very informal." He had, always "been very friendly, kidded around with the employees , and more or less ... considered (them) sort of a big family." While admitting that he "told numerous .jokes around the place" that "possibly had innuendoes" or "might have been risque," he denied that they were ever smutty or obscene. Apparently the matter of the dues payment into which Max had inserted himself in the first part of October triggered an appeal from the employees to the Interna- tional in Chicago . Under the date of October 15 a letter (the joint effort of the employees ) was sent to the International under the signature of Dirr . It reviewed the unsuccessful efforts to get action out of Koester on a new contract and alluded to his repeated refusals to answer calls made to him . It also referred to the union dues matter and the part . played in it by Max Oscherwitz . In this connection the letter described the conversation Dirr had with Max in his office as follows: Mr. Oscherwitz said, "Bill told me to collect the dues." I told Mr. Oscherwitz that collecting the dues was between myself and the Union Members , that no paper had been signed authorizing him to collect Union Dues. Mr. Oscherwitz said, "Mr. Koester is not with the Union Members , he understands my circum- stances. Your Union contract is not open for negotiating and will not be open until January 1, 1959 . I asked Bill to let you sit in on the meeting held this morning but he refused this because he doesn 't want the members to know that the contract is not open as he had previously (May, 1959 ) stated." Mr. Oscher- witz proceeded to tell me, "I could fire you anytime I want to , and without recommendations. When there was talk of a strike, I called the International and they told me to fire anyone who was a trouble-maker." Mr. Max said he had liked me when I first came to work for him, but since I became Labor Steward he could not stand the sight of me let alone talking to me . Mr. Millard Oscherwitz, also in the room at the time, said, "Be careful what you -say about Bill (Mr. William Koester), we are personal friends . We go out together quite often." Mr. Max Oscherwitz again stated that he could not even go into the Cryovac Room because I worked there and he could not stand the sight of me. He told me that he had the authority to fire me at any time and that I had better watch my step. Mr. M. Oscherwitz said, "Mr. Koester said our place was too small for him to worry with. After all he only collects $120.00 from us and he collects thousands of dollars from the larger Companies in Cincinnati." The Union Members of this Company are paying the very same dues paid by those members of the larger companies. We want just as much for the money we pay as those other members receive. We may be few, but we are members. subjected to the same rights as are other members of this Union. We feel that if we do not get some action from this letter, surely our rights as United States Citizens belonging to a Union can be given some kind of aid from the States- men we voted into our government. After all we may be too small to worry with but we do belong to a-Union and we pay our fair share. We would like our fair share of aid from the Union that so readily collects the dues each month. The letter also stated: Shortly after our special meeting , Mr. Koester called me and told me there would be a meeting with Mr. Max Oscherwitz and I was to be present at the time, as per the agreement made at the Union Meeting held. The following day Mr. Wm. Koester phoned me again, cancelling the meeting . I heard no further from Mr. Koester. Since the Members were questioning me concerning what was to be done for them, I made innumerable telephone calls to Mr . Koester's office. Each call was answered by one of the girls in his office, and they re- peatedly told me, no matter how many times I called each day, that he was out of his office. Therefore, I never failed to leave a message asking him to please call me in return. Never once did he do so. Finally, after I had done every- thing possible to get in touch with Mr. Koester, I told one of the girls in his ofl"ice to tell him that if he was not able to call me I would get in touch with the International because the Union Members in my group wanted some action. Then he telephoned me. Mr. Koester called me on July 31 , 1958 and told me to prepare the other Union ' Members for a strike to begin on Monday; Au- gust 4, 1958. The members felt that at last they would receive something in the way of help from the Union. However, the very next day, August 1, 1958, Mr. Koester phoned me and said, "I called the International and they would not authorize a strike. Anyway, he was going to give Mr. Oscherwitz a 30-day extension whether the Union Members liked it or not because Mr. Oscherwitz 1092 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD is a sick man, he is mentally ill." He also said that while Max Oscherwitz was. out of town for his health that he, Mr. Koester, would continue to negotiate with Mr. Oscherwitz' lawyer, and would call me from time to time and let the. people know what was happening. On October 21 Dirr received a reply from Thomas J. Lloyd, the International's. president, suggesting that she and a committee of the employees meet with the local's executive board and discuss with it everything that had been alluded to in her letter to him. On November 5 Dirr wrote Jamison, the financial secretary of the local, as follows:: Attached for your convenience you will find a copy of a letter written to Mr. T. J. Lloyd, International President, and a copy of his reply. Upon receiving Mr. Lloyd's letter, I endeavored to obtain a meeting with the Executive Board and a committee of six from our plant. This request was. given a loud and firm refusal, by Mr. William Koester. In trying to reason with Mr. Koester, I found I would have to shout at the top of my lungs so that he would be able to hear me above his own yelling. Since I am a lady and always try to conduct myself as one, I decided to let the matter drop and wait for a more opportune moment, as in Mr. Koester's yelling he had informed me: that a meeting of the Executive Board and a committee of six was out of the question. He also stated that if a meeting was found to be necessary only I could attend. A short time after my first request I again approached Mr. Koester about a meeting of the Executive Board. He told me that if I wanted a meeting with the Executive Board I would have to wait until it was time. for it to meet. Mr. Jamison, as you can see from the letter I sent to Mr. Lloyd, our situation'. is out of hand. We need help now, the old idea of letting people stew and'. they'll forget won't work in this case. We have waited too long already. In fairness to the other officials in the Local #7 we decided to try the third time. for an Executive Board meeting and a committee of six. Perhaps you can, influence the others that this is serious, and that we are very serious about it.. We will get action someway, but we honestly would like to have help from our own Local if we could get it. We shall await your answer before proceeding to try elsewhere for aid. On November 12 Koester wrote Dirr as follows: I have been advised by Fin. Sec'y-Treas. Carroll Jamison that you are under the impression that I should have called a special meeting of the Executive Board for your personal appearance. Please be advised that in accordance with the verbal conversation which took place on Oct. 1, 1958, at the Membership meeting, you at that time were advised that the Executive Board met every third Wednesday at 8:00 P.M. at: Union headquarters at 31 E. 12th St. So that you will not be mistaken, once again, please be advised that the Executive Board meeting of Local #7 shall be held on Wednesday Nov. 19th,. 1958 at 8:00 P.M. at Union Headquarters, 31 E. 12th St. As I told you before, you have an invitation to attend. In Koester's testimony, which was a masterpiece of equivocation and evasion,. he stated that it was the practice of the International to send the local officials copies. of any communications received from rank-and-file members. He refused on the grounds of poor recollection, however, to identify Din's letter as having been re- ceived from the International. Later he testified in effect that he received a sum- mary of it from the'International.6 A sifting and winnowing of his testimony as a. whole shows that Koester showed the letter to Max Oscherwitz and also to Bernard. Oscherwitz, and that this probably occurred on the day •Dirr was discharged, but: certainly no more than a week earlier.? 9I do not accept this later testimony as I am convinced that the International sent no, summary of Dirr's letter but followed the usual practice of sending either the original or- a conformed copy. . 7 Both Max and Bernard admitted seeing the letter but were vague as to when. Max- testified that he could not recall if it was on the -day Dirr was discharged, the day before or a week before, "it was around that time." -Bernard did not "believe" it was on that day. Both, in their testimony, try to give the impression that they did not thoroughly- peruse the letter but merely glanced at parts of it. I do not credit that testimony. I. OSCHERWITZ AND SONS 1093 At the grievance meeting of November 17 which resulted in her discharge the question involved was why .one man was given an assignment rather than another. As to this Bernard testified: . I told her because Cletus, as top man, is very efficient-he's very good in the Cryovac Room. And Mrs. Dirr said, "He's s-h" and two letters after that. And I said, "Well, I have always known Cletus to be an exceptionally good worker in the Cryovac Room, and ,1 would put him up against anybody in the place. "Cletus is as fast as anybody in the place." And again she said, "That's a lot of And the second time she said, "I will " and using the same word. And at that time I said to Mr. Koester, 'Do we have to listen to this kind of talk from this girl?" He said, "That sounds like absolute insubordination to me." And he said, "Well, now calm down, calm down, whenever we talk and have discussions like these, why, sometimes people get excited." And then it went on to the point where they were discussing about the-this contract again, and I believe she said that Max said that if Bill said "That's in the contract," Bill wasn't • telling the truth, or something like that. And then she-Max said, "I never said that." She said, "You are a liar," just like that, emphatically, and that's when I just said, "You are fired." That was it. There is no serious contradiction of the foregoing and I find that it substantially describes what happened. That night Dirr called Max and asked for reinstatement. According to his testimony he told her, "Honey, you did it all by yourself; you had no business in using those vulgar words and calling me a liar . I will not take you back." Dirr agreed to go to arbitrations Judge Raymond E. Shannon of the Cincinnati Municipal Court was decided upon as a second choice of the Company and the Union, their first choice not being available. Dirr was represented by Koester and The secretary-treasurer of the Union, Jamison, neither one a lawyer. The Com- pany was represented by the same attorney who represented them in this pro- ceeding. Judge Shannon's decision upheld the discharge . Prior to the arbitration hearing, however, Dirr filed her first charge with the Board. Conclusions as to the Discharge I find that Dirr's discharge was discriminatory within the meaning of the Act. I agree with the General Counsel that the reason given for her discharge , namely, that she called Max a liar,9 was a convenient pretext to cover Respondent's dis- criminatory motive. While Dirr may have been oversensitive to the reaction she received from Re- spondent's officials after becoming steward it would appear that the sensitiveness was not all one sided. There is plenty of evidence to show the Company's disen- chantment with the new vigor Dirr put into the office of steward. This new vigor presumably-first became apparent in June when Dirr drafted. the employees'. list of demands for a new contract. This, it will be recalled, gave rise to the Company's observation that Dirr needed a psychiatrist. Then followed the threat of a strike- something not calculated to endear Dirr to management .10 About this same time the Charles Rickey incident occurred in which Max singled out Dirr (although others were involved) to accuse her of being a troublemaker and to warn her about its consequences. Actually, Dirr's troublemaking appears to have been synonymous with the performance of her duties as steward 11 and is quite revealing as to Max's 8 When she left the grievance meeting that day after her discharge, she rode downtown with Koester. During the ride it was agreed between the two that the matter would be taken to arbitration. 9 That was the reason Max gave in his testimony. While the other crude language she used on the same occasion may also be -relied on by Respondent, I put little stock in it for two reasons : ( 1) Max did not mention it when asked what the reason was, and (2) It would appear from the records as a whole that packinghouse language in general is hardly insipid and that "profanity and crude language " is not unknown in the plant. 10 The strike vote, incidentally, was taken at the same time Dirr became steward. If Koester followed his usual practice as exemplified by his other conduct herein , he must have informed the Company of this strike vote as soon as it occurred. 11 See Honolulu Star-Bulletin, 123 NLRB 395: Aside from the Rickey incident (in which several employees participated and for which there is no showing that Dirr was responsible) there 3s no credible evidence of any ",troublemaking" by Dirr. Hardly proba- tive are Bernard Oscherwitz' conclusions in this connection. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD state of mind at this point. Then there was the dues collection matter which gave rise to Millard's accurate prediction that Dirr would "wind up " losing her job while those for whom she was striving would still have theirs. ,The climax of it all appar- ently was Dirr's letter to the International . Not only was she being difficult but now she gave promise of being effective. That did it. I am convinced that the Company at this point was definitely thinking in terms of eliminating Dirr from the scene because of her militant and insisted union stand. While I would not go so far as to find that the grievance matter which resulted in Dirr's discharge was staged or that the whole thing was designed to trick her into a faux pas for which she ostensibly could be discharged as the General Counsel apparently contends, I do find that the situation proved to be a welcome pretext to accomplish what was fervently desired by Respondent Company. But, as it hap- pened, there was no need for the Company to take the initiative in implementing that "desire. As Max in his testimony so aptly put it to Dirr, "Honey, you did it all by yourself." In reaching the above result I have taken into consideration the fact that on one occasion when Dirr became ill at work after she became steward, the Company sent her home in a cab (which it offered to pay for) and paid her for .the time she missed. I see nothing in this to prove that the Company did not or would not act in a dis- criminatory manner against Dirr . Indeed, if anything, it tends to support just the opposite conclusion-particularly in view of the Company's claim that Din had become a "smart-alecky" troublemaker. It shows that the Company had a kindly attitude toward its employees (as is also evidenced by the obvious concern with which Max and Millard tried to console Dirr when she became upset about the dues matter) and that there was nothing personal in their agitation regarding Din-it being simply her official status and conduct that upset them. Moreover, even if I were to have accepted.the Company's contention and found that the sole reason for the discharge here was because Din, in the discussion of a grievance, called the president of the Company a iliar, I would have serious doubt that it would. be a valid defense here. As stated by the Board in The Bettcher Manu- facturing Corporation, 76 NLRB 526, 527: The process of collective bargaining takes on many aspects of ordinary trad- ing. The stakes are high. Negotiation is designed to set up the framework for a long-run employer-employee relationship. A frank, and not always compli- mentary, exchange of views must be expected and permitted the negotiators if collective bargaining is to be natural rather than stilted. The negotiators must be free not only to put forth demands and counterdemands, but also to debate and challenge the statements of one another without censorship, even if, in the course of debate, the veracity of one of the participants occasionally is brought into question. If an employer were free to discharge an individual employee because he resented, a statement made by that employee during a bargaining conference, either one of two undesirable results would follow: collective bargaining would cease to be between equals (an employee having no parallel method of retaliation), or employees would hesitate ever to partici- pate personally in bargaining negotiations , leaving such matters entirely to their representatives. See also Chronicle Publishing Company, Inc., 112 NLRB 519. N.L.R.B. v. Blue Bell, Inc., 219 F. 2d 796 (C.A. 5), cited in this connection by the Company, is dis- tinguishable on the facts. There the term "liar" was used not by an official of the union in a representative capacity in the privity of negotiations but publicly by a rank-and-file member of'the union in an organizing campaign. I also reject as being without merit the Company's contention that if it be de- termined that the Union is an assisted union then Dirr's status as steward is without legal basis and thus, she "could have no legitimate status entitled to protection." The Effect of the Arbitration In contending that .the arbitration award is "conclusive on the validity of the discharge" Respondent Company relies on Spielberg Manufacturing Company, 112 NLRB 1080. In that case the Board , while pointing out "that the Board is not bound, as a matter of law, by an arbitration award," nevertheless decided that "the desirable objective of encouraging the voluntary settlement of labor disputes" would best be served by recognition of the award because (1) the proceedings were fair and regular, (2) all parties agreed to be bound , and (3 ) the award was not clearly repugnant to the purposes and policies of the Act. The Company here contends that all three conditions of the Spielberg case have been met and that consequently I. OSCHERWITZ AND SONS 1095 the Board should not go behind the award . The General Counsel, on the contrary, contends that none of the three conditions were met and that consequently the award should have no effect here whatsoever. -I agree substantially with the General Counsel and find that the Spielberg case is not controlling on the facts here. As was the Board in Honolulu Star-Bulletin, supra,12 I am not satisfied that the arbitration proceeding here met the Spielberg standard of fairness and regularity . In this connection I first want to make it clear that I mean no reflection on Judge Shannon 's part in the case, his decision, his im- pressions of the kind of representation Din got , or his conduct of his hearing. But in view of the charges made by Din to the International against Koester and the implications of the entire record as to the relationship between Dirr and Koester including Koester's unethical and unexplained showing of Dirr 's letter to Respond- ent's officials (none of which conduct I am sure Judge Shannon was aware of) I do not believe that Dirr's representation could have been fairly or adequately presented. In addition to this inherent implausability there is, as the General Counsel points out and I find below, the fact that the Union was an assisted union and thus not on an equal footing with Respondent. This conflict between Dirr and Koester also has a bearing on the question of whether or not all the parties herein agreed to be bound by the award. If this con- flict did not exist the terms of the contract would determine this question since it provides that any arbitration award "shall be binding upon both parties." But since there was this conflict what the Union as such had agreed to certainly would or should not bind Dirr. As to her, there is nothing in the record to show that she agreed to be bound and as pointed out by the General Counsel her having filed the original charge prior to the arbitration hearing tends to negate such an intention. As did the Board in Honolulu Star-Bulletin, supra. I also find that the award here was "clearly repugnant to the purposes and policies of the Act." To permit an ,arbitration award to stand in the way of remedying an act of discrimination against an employee in violation of Section 8,(a)-(3) would be to deny enforcement of the provision of the Act that goes to the very heart of its policy. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Such discrimination was involved in Honolulu Star-Bulletin, supra, and such discrimination is involved here. - ' The 8(a)(1) Allegations There were numerous allegations of 8 (a) (1) threats made by various Respondent partners to the employees. In this connection the evidence shows the following incidents : (1) On or'about October 9, Max Oscherwitz told the employees that if they did not pay their dues they could not continue working; (2) on the same date Millard told Dirr she would "wind up"losing her job while the rest of the employees would still be working; (3) on or about July 23, Max told Dirr he could let her go for being a troublemaker; and 1(4) on the same occasion Milton told her that he did not think she liked her job or wanted to work there anymore. Of the foregoing, in the context of the entire record, I find the first three to be in violation of Section 8(a)(1). The Illegality of the Contract Respondent Company contends there is nothing' illegal in the collective-bargaining agreement existing between the Company and the Union. It claims that the "Re- spondent Company, Respondent Union, and all employees knew and understood that this contract and all succeeding contracts were interpreted as calling. for a union shop in which a new employee did not have to be a member of the Union until after 30 days of employment." 13 Apparently it bases its contention in part on the fol- lowing language in the original document: "Anybody who becomes a member of the Union or accepts employment under the 'agreement is bound to terms set down." 12 In that case , closely analagous to the situation here, an employee who had become "a thorn in the side of both management and the Union" was found by the Board to have been discharged discriminatorily within the meaning of the Act for engaging in protected union activity. In reaching this result the Board rejected a defense that the employee had been discharged for violating a company rule and further refused to recognize or honor an arbitration award which had upheld the discharge. 18 Respondent also claims that I made such a finding during the, hearing. My finding was simply that there was no evidence "to show that anybody 'had to join the Union be- fore they got a job . . . that there is no showing whatsoever that anything but a 30-day or better leeway on joining the Union was granted to every one of the employees. I also stated that "What the effect of the contract is, I can't say offhand ; I am not making any finding on that." 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On its face I am not able to find] that this language negates the clear intent of the closed-shop clause in question here. Moreover, Respondent's further position on the matter nullifies any such contention. That position is that in 1950 when Local No. 7 was formed, negotiations between the Union and the Company resulted in the adoption of an oral 30-day union-shop clause in addition to adopting orally at that time all of "the valid provisions of the original contract.. ." 14 The question thus arises, what need would there have been to adopt such a clause if it was everybody's understanding that they were operating and had been operating since 1947 under precisely such an agreement? By implication, if not specifically argued, Respondent as a defense to the charge of maintaining and enforcing the illegal clause points to the fact, which I found at the hearing and reiterate here, that in actual practice no one was ever required to join the Union in less than 30 days after being hired. Notwithstanding that the closed-shop clause was never enforced, I am constrained to find that the mere exist- ence and maintenance of it in the contract constituted violations of Section 8(a) (1), (2), and (3) of the Act by the Company and of Section 8(b)(1)(A) and (2) by the Union. Broderick Wood Products Company, 118 NLRB 38, 55; Carty Heating Corp., et al., 117 NLRB 1417. The theory of the Board, as stated in the latter case is "that the mere inclusion of discriminatory provisions in a contract, whether or not such provisions have been enforced, is also a violation of Section 8(a)(3) and (b) (2), as inherent in such discriminatory provisions is the tendency to encourage membership in a union in violation of the Act." See also Masters-Lake Success, Inc., 124 NLRB 580. I further find that by the efforts Max Oscherwitz devoted to the matter of the pay- ment of dues as set forth above he assisted the Union in further violation of Section 8 (a) (2) of the Act. As for any reliance on the so-called "savings clause" 15 by Respondent to eliminate the patently illegal closed-shop provision,16 my only observations are that even if it were worded in a more positive manner, its general scope would probably render it ineffectual for that purpose. See New York State Employers Association, Inc., et al., 93 NLRB 127; Ebasco Services Incorporated, 107 NLRB 617, at 618 and 619. In any event, Max Oscherwitz' testimony that no negotiations ever took place between the Company and the Union as a result of the changes which occurred in the Act renders the present wording of the clause ineffectual as a defense here. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connec- titon with the the operations of Respondent 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 com- merce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I'shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies .of the Act. It has been found that Respondent Company has violated Section 8(a)(1), (2), and (3), and Respondent Union Section 8(b) (1) (A) and (2) of the Act, by main- taining an agreement containing an unlawful union-security provision. It will there- fore be recommended that Respondent Company withdraw recognition from Re- spondent Union as the representative of its employees and that Respondents cease giving effect to their agreement of March 12, 1947, or to any modification, extension, 11 Even If this were the fact the adoption of such a clause at that time would still have been illegal unless it were based upon the desires of a majority of the employees as shown In a Board-conducted election. 15 The contract provides that "if any clause In this contract, now or in the future, con- flicts with any governmental regulation or if any law is passed which give [sic] the employer or employee any -right he does not possess under existing law, any clause in this contract which may be so affected will then become a basis for negotiations between the Union and the officials of the Company." 18 The closed shop was outlawed in the 1947 amendments to the Act. Those amend- ments permitted the establishment of a union shop, i.e., the requirement of joining the union not less than 30 days after being employed but then, as already indicated, only if such an arrangement had been the will of the majority of the establishment's employees In a Board-conducted election. MONSANTO CHEMICAL COMPANY 1097 supplement, or renewal thereof, or any substitute therefor, unless and until Respond- ent Union shall have been duly certified by the Board.17 By their unlawful union-security agreement, Respondents have unlawfully required employees to maintain membership in Respondent Union at the price of their em- ployment, thereby inevitably coercing the payment of initiation fees and dues. I find in accordance with established Board policy , ( United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594; Morrison-Knudsen Company, Inc., 123 NLRB 12; Gay Engineering Cor- poration, 124 NLRB 451 , that it will effectuate , the policies of the Act to order Re- spondents jointly and severally to refund to employees all initiation fees and dues paid by them for a period of 6 months prior to April 7, 1959, the date upon which charges were filed regarding this matter. It has also been found that Respondent Company discharged its employee, Ruth Dirr, because of her union activity thereby discriminating against her within the meaning of Section 8(a) (3) of the Act. It will be recommended that the Respondent Company offer reinstatement to Dirr and make her whole for any loss of pay suf- fered by reason of the discrimination against her. Said loss of pay shall be com- puted in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Company, Max B . Oscherwitz, Bernard Oscherwitz and Millard S. Oscherwitz, Co-partners doing business as I. Oscherwitz and Sons, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union , Amalgamated Meat Cutters and Butchers Workmen of North America, AFL-CIO, Local No. 7, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining a contract containing an unlawful union -security provision and by collecting initiation fees and dues thereunder; Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 4. By discriminating with respect to the hire and tenure of employees, thereby discouraging membership in Respondent Union, Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 5. By interfering with_ restraining , and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent Company has engaged in uh- fair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By maintaining a contract containing an unlawful union-security provision Re- spondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 7. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A ) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 17This is not intended to require Respondent Company to vary or abandon the sub- stantive features of its relations with its employees , established in the performance of the agreement, or to prejudice the assertion by employees of any rights they may have thereunder. Monsanto Chemical Company and International Chemical Work- ers Union, Local 16, AFL-CIO. Case No. 14-CA-2217. March 2, 1961 DECISION AND ORDER On June 7, 1960, Trial Examiner C. W. Whittemore issued his In- termediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 119.