Florence Brooks

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florence Brooks and Food Fair Stores, Inc. and Retail Food Clerks Union, Local 1245, Retail Clerks International Associa- tion, AFL-CIO, Party to the Contract Elizabeth Brooks and Food Fair Stores, Inc. and Retail Food Clerks Union, Local 1245, Retail Clerks International Associa- tion, AFL-CIO, Party to the Contract Florence Brooks and Retail Food Clerks Union, Local 1245, Re- tail Clerks International Association, AFL-CIO and Food Fair Stores, Inc., Party to the Contract Elizabeth Brooks and Retail Food Clerks Union , Local 1245, Re- tail Clerks International Association, AFL-CIO and Food Fair Stores, Inc., Party to the Contract. Cases Nos. 22-CA- 568-1, 22-CA-568-2, 22-CB-253-1, and 22-CB-253-2. May 24, 1961 DECISION AND ORDER On August 31, 1960, Trial Examiner A. Norman Somers 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 a copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and briefs in support thereof.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner,2 with the exception of the language * See footnote 1 of Intermediate Report. 2 The Respondent Union 's request for oral argument is denied as the record, including the exceptions and briefs, adequately sets forth the issues and the positions of the parties. 2 Contrary to the dissent, our holding herein is not based upon an assumption that any conduct designed to collect assessments is ipso facto an unfair labor practice. Con- sistent with the Trial Examiner's findings of fact and conclusions of law, we hold that the checkoffs of assessments in this case were unlawful because they were exacted from employees as a condition of their continued employment. There exactions were made by means of threats to employees and were made, moreover, independent of the outstanding authorizations . The second proviso to Section 8 ( a) (3) limits the right of an employer and a union to condition employment on the payment of union membership obligations to the payment of "periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership ." Clearly this does not include assessments of the kind involved herein . International Harvester Company, Foundry Division (Louisville Works), 95 NLRB 730. The Board's decision in Wm. Wolf Bakery, Inc., 122 NLRB 630, does not require a different result. That decision merely held that a checkoff authoriza- 131 NLRB No. 97. FLORENCE BROOKS 757 of the recommended order and notices which are modified as indicated below. 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. Respondent Food Fair Stores, Inc., its officers, agents, successors, and assigns, at the stores in the North Jersey Branch, known as Branch 6, shall : 1. Cease and desist from : (a) Threatening to discharge or otherwise discriminating against any employees if they do not pay strike or other assessments to the Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act, except to the extent that the same may be per- mitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO, reimburse the employees in all stores of Branch 6 for any payments of the strike assessment, in whole or in part, made after November 3, 1959. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and data appropriate to checking compliance with the terms of the preceding paragraph. (c) Post at all stores in Branch 6 copies of the notice attached hereto marked "Appendix A." 3 Copies of such notice, to be furnished by the Regional Director for the Twenty-second Region, after being duly tion which included assessments was not on its face in conflict with Section 302 of the Act. Had Respondent Stores, in response to Respondent Union's ' demand , merely checked off the assessments under color of the authority of the checkoff authorizations, the validity of its conduct might appear in a different light. Although the validity of such conduct might turn on the conformity of the authorizations to the provisions of Section 302, we are not faced with that issue in this case , and therefore do not pass upon it. Nor do we make the same argument which Member Leedom finds the Supreme Court rejected in its recent decision in Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. v. N L R B. ( Mechanics Handling System ), 365 U S. 651. In that decision the Court was speaking in the context of a per se violation of the Act whereby coercion was imputed . In the instant case coercion is found to have in fact existed and, further , to have been in support of an unlawful purpose, Le , the conditioning of employment upon the payment of assessments in violation of Section 8(a) (3). Moreover, the reimbursement of such unlawful exaction of the assessments is extended to all stores in Branch 6 of Respondent Stores because, as found by the Trial Examiner, the letter of November 3 was a declaration by Respondent Stores that it would require all employees who had not voluntarily paid their assessments by that date to'pay under the same job tenure sanction as applied to payment of regular dues. 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." 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by the Respondent Company's representatives, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company and its representatives to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein, marked "Appendix B." (e) Furnish to the Regional Director signed copies of the notice marked "Appendix A" for posting by Respondent Union, as herein- after directed. (f) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO, its officers, agents, representa- tives, successors, and assigns, shall : 1. Cease and desist from : (a) Attempting to cause Food Fair Stores, Inc., to discharge or threaten to discharge or otherwise discriminate against any employees in its North Jersey Branch, known as Branch 6, if they do not pay strike or other assessments to said Union. (b) Themselves making the above threat to any of said employees. (c) In any like or related manner restraining or coercing any of said employees in the exercise of their rights, as guaranteed by Sec- tion 7 of the Act, except to the extent that the same may be permitted by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Food Fair Stores, Inc., reimburse the employees in all stores of Branch 6 for any payment in whole or in part, of the strike assessment made after November 3, 1959. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and data appropriate to checking compliance with the terms of the preceding paragraph. (c) Post at the office and meeting halls of Respondent Union, in- cluding all places where notices to members of Respondent Union are customarily posted, copies of the notice attached hereto as "Appendix B."' Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by the 4 See footnote 3 FLORENCE BROOKS 759 representative-of Respondent Union, be posted immediately upon re- ceipt thereof and maintained by said Respondent for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Twenty-second Region copies of the notice attached hereto marked "Appendix B" for post- ing by Food Fair Stores, Inc. (e) Post at the same place and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Company's notice, marked "Ap- pendix A." (f) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER LEEDOM, dissenting in part : The Trial Examiner found, and my colleagues agree, that the Re- spondents violated the Act, inter alia, by the checkoff of a strike assess- ment, over the protest of the employees involved, from the wages of employees who had signed authorizations specifically encompassing assessments. In so finding, they have placed controlling weight on the threats of discharge which they have also found, and I agree, violated the Act, and have ignored the authorizations on the grounds that they are immaterial to the issues and have been effectively re- voked. In the circumstances here, I cannot agree that the authoriza- tions are either immaterial or have been revoked, or that the issue may be decided on the basis of the threats alone. For I cannot agree with the apparent assumption of my colleagues that because Section 8(a) (3) bars discrimination for failure to pay assessments, any conduct designed to collect assessments is ipso facto an unfair labor practice, even though such collection is pursuant to an authorization valid un- der Section 302. So to hold would render the rights granted to em- ployers and unions by Section 302 wholly illusory ; it would make unlawful under Section 8(a) (3) that which is lawful under Section 302. As the Board has pointed out,5 under the interpretation of the Department of Justice, which is charged with responsibility for en- forcing Section 302 of the Act, a checkoff authorization may law- fully cover assessments as well as initiation fees and dues; 5 the Board also stated in that case that as a matter of comity its interpretation of Section 302 should follow that of the Department of Justice. This being so, I think it is clear that, assuming the existence of valid 5 Wm Wolf Bakery, Inc, 122 NLRB 630. 8 See 22 LRRM 46, 47. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization, there would have been no violation by either Respond- ent if there had been no threats and the Respondent Company had merely complied with the Respondent Union's request for the check- off of the strike assessment ; for in such a case the Respondents would have done no more than the employees had voluntarily agreed they lawfully might do, and there is nothing in the Act making such con- duct an unfair labor practice. Do the Respondents' unlawful threats require a different result? I think not. I do not believe that action which is lawful in itself be- comes unlawful merely because the Respondents, misapprehending their legal rights, resorted to independently unlawful conduct in an effort to coerce the employees, to permit them to do what they already independently had the right to do.7 Rather, the question of whether the checkoff of the strike assessment was or was not an unfair labor practice turns on whether or not the employees involved had executed valid voluntary checkoff authorizations permitting such a deduction, which authorizations were still in effect at the time the deductions were made. As indicated in the Trial Examiner's Intermediate Report, there were two forms of checkoff authorizations in existence. One author- ized the deduction of "membership dues" in a specific amount; the other authorized the deduction of, inter alia, "any assessments," with- out specification of an amount. Although the term "membership dues" generally includes assessments," the authorization here of the deduction of a specific amount negates, in my opinion, any inference that those employees who signed the first type of checkoff intended to authorize the deduction of nonperiodic obligations such as the strike assessment involved herein. In view of the Respondent's coer- cion, the unauthorized deduction of the strike assessment from em- ployees who had executed only this type of authorization was, as my colleagues have found, an unfair labor practice, and the reimburse- ment remedy is therefore appropriate as to them.' The deduction from the employees who had executed the second type of authorization stands, however, on a different footing. These employees had specifically authorized, without limitation as to 7In holding to the contrary , my colleagues are making essentially the same argument which the Supreme Court recently rejected when the Board urged it in support of the validity of the Brown-Olds reimbursement remedy in the context of enforcement of a closed-shop preferential hiring agreement, namely, that the fact that money could have been collected by legal means "does not privilege the use of an illegal procedure to obtain it." See Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al v. N L R B. (Mechanics Handling System ), 365 U S 651, footnote 1. Although the reference to this argument appears in the concurring opinion of Mr. Justice Harlan, there can be no doubt that it was also rejected by the Justices who subscribed to the principal opinion 8 Ibid 9 Whether the unauthorized deduction would have been an unfair labor practice in the absence of coercion is a question I need not decide. FLORENCE BROOKS 761 amount, the deduction of "any assessments," which clearly includes a strike assessment such as that involved herein. Thus, the only ques- tion as to them was whether their authorizations were still in effect when the deductions were made. The Trial Examiner concluded and my colleagues apparently agree that these authorizations were not then in effect because "revocation reasonably inhered in the employees' `uproar' against the prospect of having the assessment checked off from their wages." These authorizations specifically provided, how- ever, that revocation was to be made in writing, and there is no evi- dence that any employee sought to revoke his authorization in writing. Accordingly, I would find that the deduction of the strike assessment from the wages of employees who had executed this second type of authorization was pursuant to a valid current checkoff authorization and did not violate the Act; accordingly I would not order reimburse- ment as to them. Otherwise, I agree with my colleagues' disposition of these cases including, for the reasons stated by them, the reimburse- ment of all employees in all stores in Branch 6 who had not executed the second type of authorization specifically covering assessments and who paid strike assessments after November 3,1959. APPENDIX A To ALL EMPLOYEES OF BRANCH 6 OF FOOD FAIR STORES, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959, we hereby notify you that: WE WILL NOT threaten to discharge or otherwise discriminate against any of you for failure to pay the Union's strike assessment or any other assessment or obligation apart from periodic dues or initiation fees. WE WILL, jointly and severally with Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO, the Union in question, reimburse all employees for all payments of the strike assessment, or any part thereof, made after Novem- ber 3,1959. WE WILL NOT, in any manner similar to the first paragraph above, interfere with, restrain, or coerce you in the exercise of your rights as guaranteed by the National Labor Relations Act, except to the extent that Section 8(a) (3) thereof permits the making or enforcing of a contract which requires membership in a union as a condition of employment. In that connection you are advised that the only obligation we will enforce under penalty of discharge pursuant to any such contract is the payment of pe- 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riodic dues or initiation fees, but not the obligation to pay assess- ments. The latter is a private matter between you and the Union, on which your employment does not depend. While your check- off authorization cards, even those which do not specifically men- tion assessments, permit us to deduct such assessment from your pay, it is subject only to your consent as expressed in your au- thorization. A checkoff authorization is a voluntary act on your part, which it is your privilege to keep in force or revoke as you desire, subject to its terms. FOOD FAIR STORES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B To ALL EMPLOYEES OF BRANCH 6 OF FOOD FAIR STORES, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959, we hereby notify you that : WE WILL NOT attempt to cause Food Fair Stores, Inc., to dis- charge or threaten to discharge or otherwise discriminate against any of you, nor will we so threaten any of you, for failure to pay the Union's strike assessments or other assessments or obligation apart from periodic dues or initiation fees. WE WILL, jointly and severally, with Food Fair Stores, Inc., reimburse all employees for all payments of the strike assessment, or any part thereof, made after November 3, 1959. WE WILL NOT, in any manner similar to the first paragraph above, restrain or coerce you in the exercise of your rights as guaranteed by the National Labor Relations Act, except to the extent that Section 8(a) (3) thereof permits the making or en- forcing of a contract which requires membership in the Union as a condition of employment. In that connection, you are ad- vised that the only obligation we will seek to enforce under pen- alty of discharge pursuant to any such contract is the payment of periodic dues or initiation fees, but not the obligation to pay assessments. The latter is a private matter between you and the Union, on which your employment does not depend. While your checkoff authorization cards, even those which do not mention assessments specifically, permit your employer to deduct such FLORENCE BROOKS 763 assessments from your pay, it is subject only to your consent as expressed in your authorization. A checkoff authorization is a voluntary act on your part , which it is your privilege to keep in force or revoke, as you desire, subject to its terms. RETAIL FOOD CLERKS UNION LOCAL 1245, RETAIL CLERKS INTERNATIONAL Asso- CIATION, 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 This consolidated case, with all parties represented , was heard in Newark, New Jersey, on May 2, 6, 11, 12, and 13, 1960 . (The hearing opened on May 2 before another Trial Examiner, and before testimony was taken, was continued to May 6. From then on, the matter was heard before me on consent of the parties.) The basic issue was whether the collection from certain employees of Food Fair Stores, Inc., of a strike assessment voted by the Union, in the circumstances presented, constituted a violation of Section 8(a)(3) and (1) by the Company and of 8(b)(2) and 8 (b) (1) (A) by the Union, whether representatives of the Employer and the Union told employees that failure to pay the assessment would result in discharge, thereby threatening them , in violation of Section 8(a)(1) and 8 (b)(1)(A) re- spectively; and finally, whether, as the complaint alleges, the Company "urged and solicited" employees to sign certain checkoff authorization cards, in asserted viola- tion of Section 8(a)(1) of the Act.' The parties presented oral argument and the General Counsel and the Union have filed briefs, which have been duly considered. On the entire record and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT ,I. THE BUSINESS OF THE EMPLOYER The Respondent Employer, Food Fair Stores, Inc., is a Pennsylvania corporation having its principal office in Philadelphia, and owning and operating a chain of retail supermarkets in various States including New Jersey, where its sales exceed $3,000,000 and the inflow of products from out of the State exceeds $50,000 per year. Jurisdiction is undisputed. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union , Retail Food Clerks Union, Local 1245, Retail Clerks International Association , AFL-CIO, is a labor organization within the meaning of the Act. IT. THE UNFAIR LABOR PRACTICES A. The strike assessment and its eventual exaction by the Employer at the behest of the Union from delinquent or resistant members The Union's membership includes the employees in the 58 stores comprising the Employer's North Jersey Branch, known as Branch 6. The gist of the case, com- 3 The captions above conform to the complaint, but their variance from customary format may call for clarification : Florence and Elizabeth Brooks, despite their top billings normally reserved for respondents, are the Charging Parties. The Employer and the Union, despite their respective appearances in the slots normally occupied by charging parties, are the Respondents-the Employer in the "CA" and the Union in the "CB" cases And although each is reciprocally designated in the other's cases as the "party to the contract," no contract is here under attack, nor is any in evidence 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prising the decisive facts extending to all 58 stores of the Branch, inheres in the few undisputed items, which are independent of and transcend the particularized events at 2 of the stores, where the conflicting versions of what specifically happened took up the bulk of the 4 days of hearing.2 On April 6, 1959, the Union voted a special assessment of $15 for each member to aid the sinking employees of another foodstore chain. A large majority of the employees shortly paid up directly to the Union. In respect to those who did not the Union demanded that the Employer check off the amount from the employees' dues. As stated previously (supra, footnote 1), there is no contract in evidence. Yet the record embraces a background of contractual relations between the Re- spondents of at least 18 years' vintage, and the existence of clauses, whose specific contents never came to light, but which the testimony interstitially indicates condi- tioned employment upon membership in the Union and provided for a checkoff. The Employer resisted the demand on the ground that the deduction was not a "proper" one under the contract. The Union insisted it was. Negotiations ensued. The Union finally persuaded the Employer the deduction was "proper," and the Employer, in a memorandum issued on November 3, 1959, by John Borland, Jr., personnel manager of Branch 6, to all store managers of the Branch (they having the responsibility of making all deductions subject to the checkoff) that "the Com- pany will check-off the assessment." 3 The above would seem innocuous enough but for what was connoted by a "proper" checkoff. It is clear that the expression was used not in the sense of what the Employer could deduct pursuant to the checkoff authorizations signed by the employees, but what the Employer must compel the employee to pay, in the same manner as dues, under pain of discharge. There happens to be a difference in the language of such authorization cards as are in evidence, from which it would seem that apart from authorizing deduction of initiation fees, the older cards , in use as far back as the time Florence Brooks was hired 18 years ago, authorize deduction of "membership dues," while those of the vintage beginning apparently in July 1957 authorize deduction of "monthly union dues . . . and any assessments." However, so far as the record shows, there was no reference in any of the discus- sions, whether the Respondents between themselves or either Respondent with any of the employees, to the form of the checkoff authorization, and it would seem rather clear that that was not what was entailed in the issue of whether the assessment was "proper" or was "on the checkoff," as these terms were variously used. The issue at all times between the contracting parties, and between them and the employees, was the very legal issue which the defense advances in this case, namely, whether the strike assessment was subject to the same job tenure sanctions under the contract as dues. The above would seem manifest from the sense of the record, as I at least was able to grasp it both during its development and my detached study of the cold transcript thereafter, so much so as to take it out of the domain of serious dispute. Much was made over whether the representatives of the Union, in their dealings with the Employer, specifically stated they would demand the discharge of any em- ployee who did not pay the assessment. According to the undenied and credited testimony of Personnel Manager Borland, Richard L. Johnston, who was the Union's These are the two stores employing the Charging Parties Florence Brooks is an "end clerk" at the Bergenfield store, and Elizabeth, her twin sister, has the same position at Teaneck. s The memorandum reads as follows : FOOD FAIR STORES, INC. Inter Company Memo Date : NOVEMBER 3, 1959. From : Mr John Borland . Jr To : All Store Manalera, Branch 6 cc : Mr. L Finkelstein District Managers, Branch 6 Mr. A Adams Mr. R Neale Re: Strike Assessment Local #1245 Reference is made to a recent assessment by Local #1245 against our employees who are members of the Local. Some of our employees did not pay this assessment. After continuous negotiations with Local #1245, it has finally been decided that the Company will check-off the assessment. Arrangements for the check-off will be made in the near future. If you have any questions, please contact me. FLORENCE BROOKS 765 acting secretary-treasurer in 1959, and was pressing the demand upon the Employer to make the deduction, wrote Borland in August 1959 that he would take the matter to arbitration, and a month later explicitly told Borland that he would expect the discharge of any employee who did not pay it. However, in so doing, Johnston only expressed what was implicit anyway in the course of dealings over the Union's demand. Borland's testimony concerning what he answered employees who inquired about it leaves no question but that the common premise of all discussions was that whatever was "on the checkoff" rendered the employee subject to discharge if he did not pay it. The Brooks sisters quoted Borland as saying outright, during calls made before November 3, 1959, when Borland sent his memorandum to the store managers, that they would not be discharged if they refused to pay the assessment and after that date that they would be. This was their roughhewn interpretation of what Borland said to them without the refinements to which he testified. In his pretrial affidavit, he indicated that after being advised by counsel that "the assess- ment deducted from the wages of the employees was proper or legal . he ad- vised Florence Brooks and other employees that in the event they refused to pay it, the Union could request their discharge according to the terms of the contract." At the hearing he made further refinements, which do not alter the underlying premise of what would be entailed in a decision that the deduction in question was subject to the checkoff. Thus he testified that in midsummer of 1959, he had the first of two conversations with Florence Brooks. As he described the conversation during his initial testimony at the hearing, Florence inquired whether the assessment "would be on the check-off," and he told her "at the present time it would not be on the check-off." His later version of the same talk, as a witness for the Employer, indicates what was implicit in the quoted expression. He testified she asked, "Can I be fired for not paying the assessment," and that his reply was that "at the present time we weren't even going to allow the check-off to be used through the Company check-off. And that we would resist any attempts of the Union to have her dis- charged for failure to pay the assessment." Borland's other testimony seals up the fact that a decision to invoke the checkoff was a decision to employ the discharging power, or better put, that a decision that the Union was entitled to have the Employer make the deduction entitled it as well to have the Employer invoke the sanction of discharge for nonpayment. Thus Borland testified that this being, in his 15 years as the Branch's personnel manager, the Com- pany's first experience with a demand for a checkoff of other than the regular monthly dues, he referred the matter to the main office in Philadelphia for advice and the latter turned it over to the firm of its legal advisers in that city for an opinion. He further testified that when Florence Brooks of the Bergenfield store and about a half dozen employees from other stores called to inquire whether their jobs de- pended on payment of the assessment, he replied that this hinged on whether the Company decided that the assessment was proper and that if it was, the Union could validly ask their discharge if it was not paid. Thus, in qualifying the version of the conversation with Florence Brooks as he had given it in his pretrial statement, and which he said was typical of his representations to the other employees, he testified, "I couldn't say to Florence Brooks or anybody else, `You will be fired under the terms of the contract,' because we hadn't even determined if it was a proper assess- ment. If the assessment were considered proper, then under the terms of the con- tract the employee could be discharged if the Union requested so." In reverting to the same subject as witness for the Employer, he testified: TRIAL EXAMINER : What you were conveying to them [the inquiring em- ployees] was while you have to make a decision whether it is a proper check- off, once the Company decides, pursuant to whatever advice it deems proper, that it is a proper check-off, then it would consider itself as having no alterna- tive but to discharge the employee if she should become in bad standing as a result of not paying that particular assessment; is that the purport of your message? The WImEss: Yes. The above would seem to be decisive of the basic factual issue litigated at the hearing, which is whether the payment of the assessments was under compulsion of the threat of discharge. Whether the exaction thus compelled invaded the pro- tected rights of the employees depends, of course, upon how we dispose of the Re- spondents' legal contention that the proviso to Section 8(a)(3), as set forth infra, at footnote 15, permits, under a valid union-security agreement, applying the same sanctions to enforce a duly authorized strike assessment as it does in respect to the obligation to pay "periodic dues." But I would hardly think any more is needed on the question of whether the parties here took action in accord with the legal 766 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD position on which the Union relied from the outset and to which it ultimately won over the Employer. It is clear, as I find, that the decision of whether the Company would agree to check off the assessment hinged on its determination that the em- ployees were subject to the same tenure sanctions for its nonpayment as in the case of regular dues, and that the negotiated issue of whether the deduction was "proper" entailed precisely that question, with the Union urging the affirmative and the Employer finally agreeing. Borland's November 3 announcement that the Company had decided to "check-off the assessment" was thus a declaration that it would apply the same sanctions to the assessment as to the payment of dues. Hence, all payments of the assessment made after that date were under compulsion of the sanc- tion implicit in the memo, in the same manner as regular dues. In the light of that, the details of the encounters between certain employees in the Bergenfield and Teaneck stores with their respective managers and with repre- sentatives of the Union, which consumed the bulk of the hearing, are quite inci- dental, since they do not go to the essence of the case. Whether the representatives of the Union, as some employees of these two stores testified, "threatened" them at various times that they would be discharged if they did not pay the assessment and whether the respective managers made the same "threats" after receipt of the crucial memorandum of November 3, would not go to the question of whether payment of the assessment, after November 3 at least, was compelled any more than would, for example, a question of whether employees who are covered by a union- security agreement have been specifically threatened that they will be discharged if they fail to pay their dues. In respect to dues, the compulsion inheres in the subsisting contract regardless of whether any representative of the employer or union has specifically confirmed the fact of such compulsion. By parity of reasoning, here the compulsion inhered in the Employer's announcement, in effect, that it would apply the sanction of discharge to compel the payment of the assessment, and this compulsion was present regardless of whether it was specifically reconfirmed by the store managers or the Union's representatives. Of course, to the extent that representatives of either of the contracting parties expressly spelled out to employees the legal assumption underlying the memorandum of November 3, they "threatened" the employees, as the complaint alleges. In that sense, the most pervasive threat came from the personality who least fits the un- pleasant image evoked by that term-the kindly and soft-spoken Borland, for his prior disclosure to the inquiring employees of what a decision to check off the assessment entailed and his later announcement that the Company had decided to do so consti- tuted the "threat" which made payment of the assessment an exaction for which, assuming its illegality, the Employer is responsible as the actor and the Union as the instigator. The result above indicated would follow even if there were no "threats" by any of the union officials to employees that their jobs would be forfeited if they did not pay the assessment. It would be enough that the "threat" inhering in the memorandum to the store managers was made by the Employer, and the Union "caused" manage- ment to make it, which it did. The above is not, however, to say that the union representatives did not make such "threats" directly to employees, for they could hardly be expected to be coy about taking the same legal position with the employees that the Union was taking with the Employer. Quite the reverse. There is the undenied testimony of the two Brooks sisters and of Florence Falasca, of the Bergenfield store, that in April 1959, when they were notified of the assessment, they protested to Acting Secretary- Treasurer Johnston on grounds not important here (all three because they did not see that the object of the assessment concerned them personally, and the Brooks sisters additionally because the special meeting at which the assessment was voted on was called for an evening in which their stores were open and the employees were at work and thus could not vote on the matter). They testified that Johnston, in a tone in which the native hue of his resolution was not tempered by he pale cast of thought, told them they would either pay the assessment or be fired. This happened in April 1959, more than 6 months before service of the original charges, which occurred on January 19, 1960. Hence, it cannot be the basis of an independent finding of a "threat" in violation of 8(b)(1)(A). Assuming also that the so-called Bryan Manufacturing Company decision of the Supreme Court 4 prevents our taking even evidentiary cognizance of its significance, there are the same representations made to employees by other union functionaries-Gene Mulvihill, business repre- sentative and first vice president, and Frank Devito, who from June to the end of A Local Lodge No 1424 International Association of Machinists etc (Bryan Manu- factur,ngCo)v N LRll, '162US 411 FLORENCE BROOKS 767 1959 was business agent and president , and thereafter, following Johnston 's depar- ture, the Union's secretary-treasurer. The testimony implicating these officers, un- like that involving Johnston, was denied by them.5 Without laboring the point, since in the light of the essential facts as summarized it is inconsequential anyway, the probabilities are so formidable in favor of the employees' attribution of these "threats" to the Union's officials as to raise no genuine contest concerning them. Thus Mulvi- hill, who as the Union's legman was trying to collect the assessment directly, told Florence Brooks, as she testified, that all members would have to pay the assessment or lose their jobs, and in August of the same year he had a "severe argument" with Elizabeth Brooks, in which he told her that if she persisted in her refusal, she would lose her job.6 Florence Falasca testified that Union Representatives DeVito and Mulvihill came to her at the Bergenfield store in October or November 1959, and upon their asking why she had not paid the assessment, she disparaged the Union's accomplishments and said the employees had their own "bills to pay without paying somebody else's," to which the response was that they "had to pay the assessment or be finished in the store." 7 Until now we have discussed the specific "threats" preceding Borland's edict of November 3. We have no particularized evidence of when all the holdouts finally paid up. However, the Union's "billings" 8 show entries of payments by employees extending to the end of January 1960. The evidence is specific concerning the stores in Bergenfield and Teaneck. On Friday, January 15, 1960, Irving Ring, manager of the Bergenfield store, collected the arrearages on the assessments from all 11 holdouts in his store, and a week later, William Sisti of Teaneck did the same with respect to the 10 in his place. Concern- ing the particulars of what happened, rather superfluous in the light of the fact that the 5It should be noted in all fairness that Johnston parted with the Union, or vice versa, on January 1, 1960, unlamentedly as is implied, and that, according to the Union's officials, it has lost touch with him While this, of course, shields the Union from im- pugnment of its motive in not producing him, I would hardly think that It saps of creditworthy force the respective testimonies of Personnel Manager Borland and of the employees concerning what he said to them (cf. Sears Roebuck and Company, 123 NLRB 1236, 1254), and I would not understand the Respondents so to contend. 6 Mulvihill confirmed the details of the visits and of the subject matter of the discussions but Insisted that he merely said that a uniform policy would have to be pursued whereby all paid up or none did This would lend credence to the versions of the Brooks girls, since most of the members had already paid up, and the Union would hardly be likely to carry out this policy by refunding the payments made rather than by bringing pressure to collect those being withheld. Further, there is the fact that in the course of Mulvihill's argument with Elizabeth, she called Personnel Manager Borland and she exultantly told Mulvihill that Borland said the employees would not be discharged if they did not pay the assessment. Such conduct would normally be motivated by an assertion on the part of Mulvihill which was being challenged, or at the very least checked with management. (A byproduct of this incident is that it indicates that included among the various employees who called Borland and with whom he spoke concerning the assessment in the manner that he testi- fied was Elizabeth as well, and not merely Florence, as Borland testified ) 7 DeVito admitted visiting the store with Mulvihill He testified he introduced himself to Falasca as representing the Union, to which she responded with "bitter" disparage- ment of its achievements, and that when be asked for particulars, she cited a minor gripe against her manager, which, without approval from her, he proceeded to take up, and that then she was even "more bitter." DeVito's own account would Indicate that Falasca was embarrassed by his making a production of a matter which came up only incidentally in connection with something else. Indeed, his accompanying Mulvihill, the regular con- tact man, and dominating the proceeding, beginning with his approaching one of the militant holdouts, would indicate that his purpose was to lend a hand to his bedeviled subaltern in coping with the resistant group, rather than, as lie testified, merely to learn the rounds as a recent returnee to the area Further on the score of credibility is a matter later noted in the text-DeVito also denied that in an admitted conversation with Florence Brooks In January 1960, he told her that failure of any employee to pav the assessment would mean his discharge, when in his pretrial affidavit he admitted say mg just that I would think that all of this would warrant accepting Falasca's version, including also the time as fixed by her-October or November, as against midsummer as fixed by DeVito. 8 These are the lists, sent monthly by the Union to each store manager, of the names of employees who are in airears and the amount of their arrearage to be checked off 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD die was already cast on November 3, able counsel drew lavishly upon their bountiful inquisitorial talents, the going being hottest in Respondent counsels' jousts with the embattled Brooks twins and in the General Counsel's exertions with the reluctant store managers and the Union's Mulvihill. Those eager for the details of this ad- vocative virtuosity will have to turn to the record. Suffice it that after receiving the Union's January "billings" (supra, footnote 8) for the assessment, the managers of these two stores, who, upon prior specific inquiry by them, were instructed not to "force the issue" because of the "uproar" created by the November 3 memo, finally let it be known that the issue could no longer be avoided and that payment was a condition of the employees' jobs. On January 15, the day the deductions were made in Bergenfield, Union Representative Mulvihill came to that store in response to a call from employee John Harley, and confirmed to him, on inquiry, that he had to pay or be dismissed. Florence Brooks then called DeVito, who had just succeeded Johnston as secretary-treasurer. He too came over, and bemoaning the "mess" he inherited from his predecessor, said this had to be finally cleaned up on pain of dis- charge-a statement which, in his pretrial affidavit, in contrast with his testimony at the hearing, he admitted having made (supra, footnote 7).9 In the cases of the Brooks sisters, the respective managers, fearful of losing the girls on whose experi- ence services in the key positions of "end clerk" (supra, footnote 2) they heavily depended, said they would not stand by to see employees of their value set adrift, and so they took the deductions out of their pay envelopes.io Further at Bergenfield, Manager Ring, after telling employee Paul Wright "we will have to pay this assessment or we will lose our jobs," and being informed by the latter, who had recently exhausted his funds on his vacation, that he had no money, lent it to that employee, who signed a receipt therefor and repaid it in installments. At Teaneck, Manager Sisti, reluctant, like Ring of Bergenfield, to force the exaction, stalled off the final collection for a week after January 15 on the pretext that the Union's billing had come "too late." His denial that he told the employees, before finally making the deduction, that they had to pay or be fired, was qualified by his insistence that he said that this was so only if it was a proper deduction, a fact already determined for him by Borland's memo; and he further admitted that he told the employees they had "nothing to lose" by paying up, since the issue of whether it was "proper" was now pending before the Labor Board, and he entered the deduction on each employee' s earnings statement as "compulsory union assessment." If resolution over the claimed conflict concerning these particularized items were the all-important thing the defense asserts it to be, we could hardly ignore an unexplained variance from custom in the manner in which the assessments col- lected from the 21 holdouts at the Bergenfield and Teaneck stores were remitted to the Union. The custom, as Borland testified, was for the remittance to be made through the main office. The established practice is for the individual store man- ager, after making the deduction pursuant to the "billings," to send the main office a money order or bank check for the total collected, with a listing of the names of and the amount collected from each employee. The main office retains the lists and sends on to the Union a single check for the aggregate received from all man- agers. The only kind of payments not routed through the main office and remitted by the managers directly to the Union, as Borland testified, might be "voluntary" ones, not covered by checkoff, and handed by the employee to the manager for remittance to the Union as an accommodation to him The lists thus retained by the main office constituted the data from which the Employer, in compliance with a subpena served by the General Counsel, prepared a paper naming the employees from whose wages the assessment was checked off. The paper did not name any employee in the Bergenfield and Teaneck stores, de- spite the deductions made from the pay of the 21 holdouts in January. Borland, who produced the paper and had directed its preparation, testified that the main office did not have the data concerning the Bergenfield and Teaneck employees, because the managers there had not forwarded the money to the main office, and 9 There are disputes as to details, but the factors bearing upon the weight to be given to Mulvihill's and DeVito's denials (supra, footnotes 6 and 7) should make clear that they do not stand up as against the employees' affirmations io The managers admitted doing so, but considerable heat was generated over whether this, as the sisters described it, was an act initiated by the managers, or, as the latter told it, came after each laid down her envelope, with the statement that if payment was inevitable, she would rather it be achieved by extraction from her envelope than by transmittal by her I would hardly feel called upon to pay this "conflict" the homage of a resolution. FLORENCE BROOKS 769, that he himself had only recently learned that it had been remitted directly to the Union. He characterized this as "definitely a variance" from established practice, which he could not explain, other than, possibly, that it reflected the managers' inexperience with handling assessments. But his own memorandum stated that the assessment was to be checked off, and they were hardly new to that process. The two managers contributed no enlightenment either. They testified that after collect- ing the money, they exchanged it for a cashier's check, which they brought back to the store, but had no idea of what happened to it thereafter. It would seem rather puzzling that the managers, who from the outset consulted with and awaited specific instructions from their superiors concerning every step in this delicate and controversial item, would, at the culminating step, fail either to follow the usual procedure of forwarding the money to the main office or to ask for instructions as to what to do with it. More baffling is that they should not have notified their superiors of the procedure used in remitting the money or that it had even been collected, and, carrying this extraordinary sequence of departures from the expected still further, that neither should have supervised the remittance of the very check he procured or have known what happened to it thereafter. On a parity is the fact that superior management should, as it asserts, have continued in ignorance of the matter to the extent of not even knowing whether the assessment had been checked off at these two stores, as the November 3 memorandum in- structed should be done at all stores. With every deference to the personalities involved, I mean no offense when I say that the rational mind can hardly fail to note the remoteness of the odds of such an extraordinary phenomenon being brought about by sheer chance rather than some directing will, and, in that connection, avoid noting the portion of the record which shows that the procedure here used was that which was described as applying to payments made "voluntarily," as the defense sought to establish the payments here were made. We are not called upon to explore to final determination the hypotheses fairly provoked by this abhorrent vacuum, save to note that it exists, and that it would have a legitimate role in the scales of credibility, assuming there were any genuine issue concerning whether the payments here made were under the compulsion of the unrevoked edict of November 3. The defense seeks to confine to the Bergenfield and Teaneck stores the conclusion of compulsion thus reached in respect to the payments made there. The ground advanced is that what happened there cannot support an inference concerning the Branch. But, as I have indicated at the outset, the decisive factor is the portion of the record which pervades the Branch, of which the two stores are but a part. The particulars at the two stores serve but to confirm an inference derived from evidence completely apart from them. Respondents, however, see a fatal gap in the absence of a specific showing that the memorandum of November 3 was conveyed to the employees. I can hardly see it that way. To accept the defense's contention would assume that the law is inhospitable to presumptions that reason would apply to such a situation. But this is not so. "Some presumptions have their origin in broad common-law concepts or statutes, while others are founded upon basic principles of justice, laws of nature, the experienced course of human conduct and affairs, or the connection usually found to exist between specific agencies." [Emphasis sup- plied.] 11 A presumption, of course, "must always conform to the commonly accepted experience of mankind and inferences which reasonable men would draw from such experience." 12 This would suggest that commonsense is allotted a re- spected role in the formulation of a presumption. And it is. "A presumption of fact is a probable inference which common sense, enlightened by human knowl- edge . . . draws from the . . . coincidence of circumstances with each other being always to be drawn by the [trier of the facts]." [Emphasis supplied.] 13 "Common sense, enlightened by human knowledge" would indicate that a mem- orandum of the portentous character of that of November 3 would not be sent out to the store managers as something to be locked in their bosoms, but as the answer to a question of immediate concern to the employees to be communicated to them, so that they might anticipate the deduction which had been ordered to be made, from their pay. The defense could hardly claim, for example, that if a contract had been signed expressly making payment of these assessments a condition of employ- ment and copies thereof sent to the managers, the payments thereafter would not be presumptively attributable to the contract. The memorandum of November 3 is 1120 American Jurisprudence 162 (Evidence, sec. 159). 11 Ibid. 13 Masterson v. Harris County, 15 S.W. 2d 1011 , 1014 (Tex.), 67 A.L.R. 1324, 1329. 599198-62-vol. 131-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hardly on a different plane. It was the culmination of negotiations over whether the assessment, under the subsisting contract, was subject to the same sanctions as regular dues, and the memorandum reflected a finally, mutually agreed-upon in- terpretation of the premised contract, which made the assessment so subject. The result was thus to impose upon the employees the same compulsion to pay the assess- ment as if a clause to that effect were articulated in the contract, which was the premise of their negotiations. However, the inference that the communication achieved the presumed purpose of being promulgated to the employees hardly rests unconfirmed. The stir that it created at Bergenfield and Teaneck would illustrate how an edict of that character becomes known, and I can hardly see that that is not to be taken as typical of the rest in the absence of evidence to differentiate the other stores from the two in ques- tion. To be sure, the others may not have been graced with the counterparts of the scrappy Brooks twins, but the "uproar" which Personnel Manager Borland testified his memorandum of November 3 created was not confined to these two stores. He testified that it prevailed throughout the Branch. Nor can I attach much significance to Borland's testimony that because of this uproar, he told such managers as spe- cifically inquired not to force the issue. This was hardly the equivalent of a revoca- tion of the edict. To the contrary, he is credibly quoted by Elizabeth Brooks as hav- ing said to her, on inquiry after the November 3 memo, that "he would have to go along with the agreement" and require the deduction on pain of discharge, a posi- tion which, in his pretrial affidavit, he confirms having taken with all store managers who inquired. And, in any event, the reprieve thus accomplished was short-lived in even the two hottest seats of resistance. One could hardly have expected a greater longevity for it elsewhere. While I would thus find that the payments on or after November 3, 1959, were under the compulsion of the "threat" of that date, the General Counsel, in respect to the Union, would additionally have me attribute all payments preceding Novem- ber 3 to the "threats" of the Union's representatives I would hardly be warranted in doing so. Here the defense is entitled to the presumption that the hardheaded- ness manifested by those employees who held out until the Employer confirmed the Union's threat was typical of the force as a whole, and that those who paid before were motivated by self-identification with the plight of their striking fellows, or by a sense of duty to their organization as members, rather than of apprehension for their tenure as employees. But if I am wrong in the belief that the "threats" of the union functionaries, even if they warrant a finding that they transgressed the bounds of 8(b)(1) (A), do not warrant a presumption that they compelled the payments preceding the Employer's edict, that presumption, if it exists, is overcome by the evidence. The record shows these "threats" to have been made in private conversa- tions with specifically identified employees at the stores in Bergenfield and Teaneck, none of whom paid up until after November 3. In contrast with the Employer's edict of that date, which was pervasive, there is no showing of a comparable, gen- eral pronouncement by the Union to its members or the employees, corresponding to the "threats" of its representatives to certain individual employees, who, the record shows, effectively resisted until after November 3. I would therefore con- fine the conclusion that the payments were coerced to those made after November 3, 1959. This brings us to the legal defense, which we treat now.14 B. The defense based upon the 8(a) (3) proviso The legal defense, which invokes the immunity of the 8(a)(3) proviso, assumes the existence of a valid union-security agreement in accordance with such proviso.is 11 Deferred to the "Concluding determination" is the treatment of the additional allega- tion in the complaint that Respondent in February and March 1960 "urged and solicited" employees to sign new checkoff authorizations is Section 8(a) (3), with the pertinent proviso, reads as follows It shall be an unfair labor practice for an employer-. . . by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this Act, or in any other statute of the United States, 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, . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . (B) if he has FLORENCE BROOKS 771 No contract is in evidence, nor do we have the specific contents of the union-security clause, which was the premise of all the discussions among the personalities in- volved. The defense, for reasons which thus far elude me, claims this to be to its advantage. The General Counsel, on the other hand, asserts this operates to the Respondents' detriment, since they have thereby failed to establish the existence of the contract on which they seek to take the prima facie invasion of the employees' rights out of the general ban of 8(a) (3) and into the special shelter of the proviso. Authority supports the General Counsel.16 However, in deference to the fact that the discussions among the participants in the events proceeded upon the premise of the existence of such a contract, we shall, for the purpose of evaluating the legal defense, assume its existence. Respondents,17 in full candor, acknowledge that their position that the strike assess- ment enjoys the immunities given by the 8(a)(3) proviso to the enforced collection of "periodic dues" under a valid union-security agreement (see supra, footnote 15) is opposed by the precedents holding that the expression "periodic dues" does not cover assesments,18 and that in this exclusion no special deference has been paid to the strike assessment, as the cases cited by the Union attest.19 Respondents claim, however, that the policy of these cases has been superseded by a new insight, which recognizes certain assessments uniformly imposed as a legitimate part of financial structure of unions. In support, the defense points to Wm. Wolf Bakery, 122 NLRB 630,20 which it claims has overruled the precedents above cited. In the short opinion in Wolf, the Board does not discuss the proviso to Section 8(a) (3), nor does it even mention the cases which the defense claims to have been overruled. The Board there dealt with whether a checkoff provision in a contract was invalid under Section 302 of the Labor Management Relations Act. Section 302 is a criminal provision enforced by the Department of Justice, aimed at curbing the evil of payoffs by employers to unions. It prohibits payments of money by employers to union representatives, but in subsection (c) (4) it spe- cifically excepts therefrom (subject to written authorization by the employees in- volved) deductions "from the wages of employees in payment of membership dues in a labor organization." The contract in the Wolf case had a clause for deduction of "dues, initiation fees, etc.," and the question was whether the provision for check- ing off of moneys other than dues, as embodied in "etc.," exceeded the "membership dues" limitation of Section 302(c) (4). The Board's concern with a provision which it does not administer is explained by its desire to use its "contract bar" doctrine in representation cases to lend effect to the policy of Section 302, just as it uses it also to lend effect to the policy of Section 8(a) (3). Under the doctrine of Keystone Coat, Apron & Towel Supply Co., et al., 121 NLRB 880, which reaffirms previously established doctrine to similar effect,21 the Board denies "contract bar" status to any contract having a union-security clause not in conformity with the proviso to Section 8(a)(3), and also to any contract having a checkoff clause which does not conform to Section 302(c)(4). In Wolf, the Board after first holding that a pro- vision for checkoff of moneys other than dues exceeded the "membership dues" reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. 1e Construction and General Laborers Union Local 320 , at al. ( Yonker & Petti)ohn), 96 NLRB 118, 119. Cf. W. B. Jones Lumber Company, Inc, 114 NLRB 415, 425; enfd. 245 F . 2d 388 (CA. 9). 17 The legal position is ably articulated by counsel for the Union in the only brief filed for either Respondent. It is a fair assumption that the Employer joins in it 1e Continental Can Company, 98 NLRB 1252; Convair, a Division of General Dynamics Corporation, 111 NLRB 1055 In addition to the cases cited by union counsel, see also : The Electric Auto-Lite Company etc., 92 NLRB 1073, enfd 196 F. 2d 500 (CA. 6), cert. denied 344 U . S 823; Pen and Pencil Workers Union, Local 19593, AFL (Parker Pen Company), 91 NLRB 883; Injection Molding Company, 104 NLRB 639, enfd as mod 211 F. 2d 59 (C.A. 8) ; The Eclipse Lumber Company, Inc, 95 NLRB 464, enfd. 199 F. 2d 684 (C A. 9). 10 See Anaconda Copper Mining Company , 110 NLRB 1925; Die and Tool Makers Lodge No. 113 International Association of Machinists, AFL (Peerless Tool and Engineering Co), 111 NLRB 853, enfd 231 F. 2d 298 (CA. 7), cert. denied 352 U.S 833; Central Pipe Fabricating and Supply Co, 114 NLRB 350 20 Followed in Stewart Die Casting Division (Bridgeport ) of Stewart Warner Corpora- tion, 123 NLRB 447. 21 Cf. C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limitation of Section 302(c)(4), upon reconsideration, corrected itself, and defer- ring to the interpretation given that term by the Department of Justice, held that "membership dues" as used in Section 302 was broad enough "to include initiation fees and assessments in addition to dues." [Emphasis supplied.] The defense contends that the Board, in thus interpreting the "membership dues" standard of 'Section 302 to include assessments, has, by implication, given a corre- sponding interpretation to the "periodic dues" limitation of the proviso to Section 8(a)(3), thereby overruling the body of precedent in which it had interpreted "periodic dues" as excluding assessments. The simple answer to this sweeping contention would be that it is hardly consistent with the Board's manner of over- ruling established doctrine, not to mention either the section involved or the inter- pretation theretofore prevailing or any of the cases claimed to have been over- ruled. If the Board's decision in Wolf can be said to have any sub silentio force as claimed, it would be in the direction not of overruling prior doctrine, but of its reaffirmation. For in documenting the interpretation of Section 302, the Board, in Wolf, cited its prior similar interpretation of that section in International Harvester Co., 95 NLRB 730, and at the same time it cited the page in which it expressed the distinction between the "membership dues" standard of Section 302 and the "periodic dues" standard of the 8 (a) (3) proviso in the following language (p. 733) : However, the clause in Section 302 interpreted by the Department of Justice to include assessments contains different language and has a different purpose from that used by Congress in Section 8(a)(3)(B), with which we are here solely concerned. Here, the words to be construed are "periodic dues"; there they were "membership dues." The latter term is more susceptible of a broader interpretation. Under Section 8(a) (3) (B), Congress was legislating with regard to a collective bargaining agreement making mandatory the payment of periodic dues as a condition of employment. Under Section 302 the term "membership dues" embraces those union charges that may legally be included in the checkoff provisions of a contract, where the checkoff cannot be effective as to any indi- vidual employee unless specifically and voluntarily authorized in writing by that employee. For these reasons we do not believe that the cited opinion of the Department of Justice can be controlling. The Wolf case, in thus citing International Harvester, would seem to have given renewed vitality to the distinction between the two standards which the defense claims .the Board put an end to in Wolf. This is not to ignore, however, that learned counsel have presented, with persuasive force, a case for a possible reexamination of controlling doctrine. They brand the distinction between the two standards as "incon- gruous" and as drawing a fine line which tends to confuse even the conscientious, a point which would seem rather to be borne out by .the fact that it eluded the Employer and even its Philadelphia lawyers, who proceeded on the assumption that what was "on the checkoff" was also compulsory under the union-security agreement. The defense argues for recognition of the difference between assessments which are intended as a fine or as a political contribution (the latter being the kind which the legislative history of the 8(a) (3) proviso, as recited by the Board in the International Harvester case, shows to have been the inspiration for the "periodic dues" limitation) and those which are "an integral part of a union's financial structure." The latter, counsel argue, are indistinguishable in intrinsic content and purpose from dues, it being merely a matter of mechanics whether a union replenishes a treasury depleted by a costly strike through raising the amount of regular dues or the ad hoc device of levying an assessment. The defense stresses that Congress recognized the distinction between legitimate and meretricious assessments in its 1951 amendment to the Rail- way Labor Act,22 in which, for the first time, Congress permitted in respect to rail- roads the making of union-security agreements and the checking off of dues, as was theretofore permitted in industry. In the amendment to the Railway Act, the standards for a voluntary checkoff pursuant to employee authorization and for a com- pelled exaction enforceable under a union-security agreement are identical: Section 152 Eleventh (b) permits checking off "periodic dues, initiation fees, and assessments (not including fines and penalties)," and subparagraph (a) thereof permits exacting, under the compulsion of a union-security requirement, the same obligations described in language identical with that in (b). To refute the argument that the above is a different law from the Labor Management Relations Act, counsel points to declara- tions by distinguished members of both Houses, suggestive of an assumption that in according this new permission in railroads for entering into union-security and check- 22 25 U.S.C, ch. 8, sec. 151, et seq. FLORENCE BROOKS 773 ,off agreements, Congress was adopting the same standards there as prevailed in industry under the Taft-Hartley Law.23 It must be said, however, that weighty as may be the factors advanced by counsel for a reexamination of the presently prevailing distinction between the "periodic dues" standard of the 8(a)(3) proviso and the "membership dues" standard of Sec- tion 302, it is quite another thing to say that the distinction no longer exists under controlling doctrine. The distinction still prevails and is binding upon me, and it -goes without saying that any plea for a reexamination of controlling doctrine is .appropriately to be addressed to the Board. C. Concluding determination 1. Concerning the exaction of the assessment The result is that the threat of discharge under which payment of the assessment was exacted and the exaction itself come under the general ban against discrimination 'contained in Section 8(a)-(3), without the shelter of the excepting proviso, even if we assume the existence of a valid union-security agreement between Respondents. The threat inherent in the edict of November 3, 1959, and its subsequent reaffirma- tions by Store Managers Ring and Sisti,24 made the payment compulsory under the sanctions of discharge if the employees lost their good standing with the Union 'through failure to pay it. Thus the Employer, in making the threat, and in exacting payment on the strength of it, discriminated against its employees in violation of Section 8(a)(3), and the Union, in causing the Employer so to do, violated Section 8(b),(2) of the Act. This also invaded the employees' protected rights, in violation -of Section 8 (a) (1) on the part of the Employer and of 8(b) (1) (A) on the part of the Union, the latter additionally violating 8(b)(1)(A) by the threats of its repre- sentatives , Frank DeVito and Gene Mulvihill, that failure to pay the assessments would result in the employees' discharge. It is appropriate here to consider the role of the checkoff authorization cards. As previously stated, of the authorizations then oustanding, the old permitted deduction (apart from initiation fees) of "membership dues," and the new of "monthly union dues . and any assessments." Thus, if the issue were the scope of what the cards authorized, there would be no distinction between the two, since, as appears from the preceding discussion, the term "membership dues," as distinguished from "periodic dues," embraces assessments no less than regular dues. But, for reasons already fully developed, this is not the issue here. To be sure, the General Counsel, in his complaint, has included an allegation to the effect that the deductions made 28 The following portions of the 95th Congressional Record ( 81st Long, 2d sess.) would seem to be in point • 1. Senator Hill-"It would relax the prohibitions contained in paragraphs Fourth and Fifth of the Railway Labor Act by restoring to carriers and their employees the right to bargain collectively with regard to the union shop and the check-off In the limitations imposed and the nature of the right granted the bill clearly follows the pattern of parallel provisions of the Taft-Hartley Act." (P. 15736.) ( Emphasis supplied 1 2. Senator Taft-"I objected to some of the original terms of the bill , but when the proponents agreed to accept amendments which made the provisions identical with the Taft-Hartley law, I was willing to concur in those amendments . . (P. 16267.) [Emphasis supplied ] 3. Representative Wolverton-"There is another provision of the bill that I would like to discuss. That is the provision dealing with voluntary dues deductions . It authorizes the negotiation of agreements between labor organizations and the carriers to provide for the deduction from the wages of the employees of any 'periodic dues, initiation fees and assessments uniformly required as a condition of acquiring or retaining membership' in the Union . This provision is confined , as specifically stated , to periodic-that is normal dues, fees and assessments . The carrier would in no way be expected to deduct fines and penalties that might be 'imposed by a union In exceptional cases. . . . I can see no jasti• ftable reason for continuing to withhold from railroad and airline employees the right to bargain collectively for union-shop and check-off agreements-in the face of the rights which we have preserved by the Taft-Hartley Act to employees in all other industries" (P. 17051 .) (Emphasis supplied ] PA And also Elmer C. Pecht, a district supervisor, who, on inquiry by Ring and Sisti, reaffirmed that payment of the assessment was compulsory , in a context in which it was plain that his instructions were intended for communication to the employees in the same manner as the November 3 memo of Borland had been. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were beyond the scope of the -authorizations . This allegation is sheer surplusage, and had it been established, it would have added nothing to the issue which the parties litigated. Had the deduction been in excess of the authorization, it could arguably have provided an independent showing of company assistance to the Union, separately and apart from the litigated issue of the threats and the exaction made pursuant thereto. But as already appears, the form of the authorization does not affect the finding here made that the threats were made: it does not affect the conclusion here arrived at that the threats as made transgressed the statute. It would seem manifest that the liability for the exaction is not even mitigated' by the form of the authorization cards. The parties never relied upon them: the Employer's decision as to whether to comply with the Union's demand that it make the deduction did not hinge upon whether the authorizations permitted it to do so, but upon whether it was required to exact the payments under the sanctions of discharge inherent in some union -security requirement on which the parties' discus- sions were premised. The Union's demands upon the Employer and 'upon the em- ployees were predicated upon an asserted obligation on their part to pay the assess- ment in order to maintain the good standing with the Union which was the mutually assumed condition of their employment. Since it appears that regardless of the form of the authorizations, the threats and the exaction flowing therefrom would not have been made but for the assumption, on which the Union induced the Em- ployer to act, that payment of the assessment was necessary to meet the require- ment of membership which was the mutually assumed condition of the employees' tenure, the form of the authorization bears no weight in the determination of the litigated issue. In view of the above, it becomes rather superfluous to discuss the matter of the revocability of the authorizations in the cards. It is a fact, however, that insofar as the authorizations were revocable , such revocation reasonably inhered in the employees' "uproar" against the prospect of having the assessment checked off from their wages. The old form of authorization has no provision making it irrevocable at any time. The new form continues the authorization in effect "for the term of this contract, or one year, whichever is the lesser, unless revoked in writing by the [employee] to the company and the Union fifteen days prior to each contract year anniversary date." [Emphasis supplied.] But there is no contract in evidence which discloses the term of the contract or whether the "fifteen days prior to [the] contract year anniversary date" had been attained . Since it was Respondents who elected to, keep the record silent concerning a matter to which they alone had the answer, they face an adverse inference concerning what the record would have said on that score if they had permitted it to speak. Also, since during all of the employees' opposition to the checkoff of the assessment no point had been made that they had failed to revoke the authorization therefor in writing, that item could hardly be relied on now, assuming, contrary to what I have already indicated, that the form of the authoriza- tions could play any role in the determination of the issues here. And to any sug- gestion that the grounds for such disposition of the matter of the authorizations is "technical," the obvious answer would be that he who thrusts the technical sword must be prepared to meet the technical shield. 2. The checkoff authorization cards distributed among certain employees in March 1960 The complaint alleges that the Employer, in February and March 1960, "urged and solicited" employees at the Bergenfield and other stores to sign fresh authoriza- tion cards. Seventeen authorization cards were introduced into evidence , nearly all signed in March 1960, the remainder in April. The evidence concerning them is rather nebulous, and if the General Counsel's brief is any indication, he would not appear to be pressing that issue. Borland testified the purpose of the new signatures was to bring some order into a rather chaotic clerical system attending the checkoff practice; that although all employees are supposed to sign a checkoff authorization card when hired, the Company did not have any on file for some employees and that the new signatures were obtained from those whose cards were missing. The new batch does include the card of an employee for whom there is also an old form of authorization card in evidence However, if the General Counsel's objection to the newly acquired signatures is that the new form of authorization expressly permits deduction of assessments , the answer would be that the old form too permits it, under the interpretation , previously discussed, of the term "member- ship dues," as used therein . To the extent that the new card has a stated term of irrevocability, it is seemingly academic here, since the Employer has been shown not to have been concerned with what the cards permit it to deduct , so much as what it thought it was required to exact under the sanctions of some union-security WESTERN STATES STONE CO. 775 clause. It may be presumed that that is all which concerns the Employer now, and that in respect thereto, it will act with the deference due to controlling authority concerning how far the statute permits it to go in applying the sanctions of any union-security agreement in enforcing payment of any obligation on the part of its employees to the Union. There being thus every indication that these new authori- zations will have no practical consequences in terms of the type of issue before us, it would seem appropriate, under the particular circumstances of this case, and con- sidering the inconclusive state of the record concerning the subject, to dismiss the allegation of the complaint concerned with the procurement of the checkoff authori- zation cards in question. IV. THE REMEDY The case flows solely from actions taken in reliance upon a legal position, which happens to be in error, and the remedy should be so limited. Affirmatively, the employees of Branch 6 should be jointly and severally reimbursed by the Respond- ents for the strike assessments or any portion thereof paid after November 3, 1959, and the notices should be aimed at advising the employees concerning their rights in the matter. They should be advised, of course, that failure to pay assessments will not be a cause of discharge. However, they should also be advised concerning the significance of their checkoff authorizations, in a manner fair both to them and to the Union. This will be achieved, I think, by their being advised that the obliga- tion to pay assessments is a matter between them and the Union, which the Em- ployer will not enforce under any contract, and that while their checkoff cards do authorize deduction of assessments, the authorization is a voluntary one, which they are at liberty to revoke, subject to its terms. Upon the findings above made and the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. By threatening employees with discharge if they did not pay the strike assess- ment and by exacting payment thereof pursuant thereto, the Employer discriminated against employees in violation of Section 8(a)(3) and interfered with, restrained, and coerced employees in the exercise of their statutory rights, in violation of Section 8 (a)( 1 ) of the Act. 2. By causing and attempting to cause the Employer to discriminate against em- ployees in the manner aforesaid, the Union engaged in and is engaging in an unfair labor practice in violation of Section 8(b)(2) of the Act. Thereby, and also by itself threatening employees with discharge if they did not pay the assessment, the Union restrained and coerced employees in the exercise of their statutory rights, thus engaging in an unfair labor practice within the meaning of Section 8 (b) (1) (A) of the Act. 3. Said unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication. ] C. E. Webster, An Individual Proprietor d/b/a Western States Stone Co. and Construction, Production and Maintenance Laborers Local No. 556. Case No. 28-CA-683 (formerly Case No. P31-CA-40392). May 25, 1961 DECISION AND ORDER On December 13, 1960, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a support- ing brief. 131 NLRB No. 102.