G & H Products Corp.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request , bargain collectively with the Union concerning the payment of Christmas bonuses to employees within the appropriate unit. WE WILL make whole the eligible employees in the appropriate unit for any loss they may have suffered by reason of our unilateral termination of the December 1961 Christmas bonus payments. WE WILL NOT in any like or related manner interfere with our employees' rights as guaranteed in the Act. EXCHANGE PARTS COMPANY , REBUILDERS SERVICE COMPANY, AND SOUTHWEST SHOE EXCHANGE COMPANY, Employers. 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. Employees may communicate directly with the Board's Regional Office, Federal Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341, Extension 284, if they have any question concerning this notice or compliance with its provisions. G & H Products Corporation and Rudolph Edwin Brau. Case No. 13-C-4-4783. October 31,1962 DECISION AND ORDER On August 16, 1962, Trial Examiner Stanley Gilbert issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report together with a supporting brief. 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 [Chairman McCulloch and Members Rodgers 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A charge having been filed by Rudolph Edwin Brau (hereinafter referred to as Brau ) on March 28, 1962, the complaint herein was issued on April 30, 1962, al- leging that G & H Products Corporation ( hereinafter referred to as the Company or Respondent ) violated Section 8(a)(3) and (1) of the Act by discharging Brau 139 NLRB No. 55. G & H PRODUCTS CORPORATION 737 at the request of Lodge 34 , International Association of Machinists, AFL-CIO (hereinafter referred to as the Union) "when it [Respondent] had reasonable grounds for believing that membership in the Union was denied to . . . Brau for reasons other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." In its answer Respondent, in essence, denies the commission of the alleged unfair labor practices, and asserts that Brau was not discharged and that the supervisor' who is alleged to have discharged him did not have the authority to do so. A hearing was held before Trial Examiner Stanley Gilbert on June 18, 1962, at Kenosha, Wisconsin. All parties were present and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses , to present oral argument, and to file briefs. Oral argument was waived and General Counsel and Respondent filed briefs within the time designated therefor. Based upon consideration of the briefs filed, the entire record , and my observa- tion of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation, maintains a plant and place of business in Kenosha, Wisconsin, where it is engaged in the manufacture, sale, and distribu- tion of sanitary fittings. During the calendar year 1961 , a representative period, Respondent, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 directly from its said plant to States other than Wisconsin. I find, as is admitted by Respondent , that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, as is admitted by Respondent, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Brau entered the employ of Respondent in November 1961. During the period material herein Respondent had a collective -bargaining agreement with the Union which included the following clause: Each employee covered by this agreement shall after forty-five working days of employment become and remain a member of the Union during the terms of this agreement, provided , however, that the Company shall not be called upon or required by the Union to discharge such an employee for reasons other than the failure of the employee to tender the periodic dues, uniformly required , and the initiation fees as established by the Union. Brau had joined the Union in 1956, but some time prior to entering the employ of Respondent had received a withdrawal card. The Union required Brau, in order to become a member in good standing, to pay a reinstatement fee of $25. On or about February 8, 1962, and apparently after the 45-day grace period had ex- pired, Brau proposed an arrangement to William H. Petersen , secretary and treasurer of the Union, to pay the $25 in installments of $5, the first on February 13 and the remaining installments each Friday thereafter commencing February 16. Peter- sen agreed to the proposal with the modification that the final payment (which had to have been $ 10) was to be made by March 2, 1962.2 Brau did not pay the initial $5 until February 19, 1962. On that date he sent his mother to the union office with $5 which she turned over to Jean Brehm , a secre- i Although the supervisory status was denied in the answer, in the course of the hearing It was stipulated that Marvin Wirtz, the peison who is alleged to have discharged Brau. is a supervisor within the meaning of Section 2 ( 11) of the Act. 2 This is the arrangement which Petersen testified was made. Bran 's testimony does not vary substantially from Petersen 's, but I credit Petersen 's testimony as to the exact terms Brau testified he was "to pay $5 down and $5 a week until this sum of $20 was paid, but it had to be paid by March 2nd " 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tary in the office (not the secretary of the Union), and received from her a receipt which stated: Received from Rudolph Brau Five dollars & no/100 Dollars Part payment on Reinstatement Fee-total fee 25.00-5.00 Pd. Balance Due 20.00 Mar. 2, 1962 T.A.M. LODGE 34 JB Petersen testified that Brehm was informed that the total fee had to be paid by March 2, 1962, but it is evident that the receipt did not correctly reflect the exten- sion agreement between Brau and Petersen. Petersen further testified that she was authorized to receive payment of fees and give receipts, but that she was not author- ized to modify the agreement he had made with Brau. Brau was on a 3-day layoff from February 21 to 23, 1962, and was due to return to work on February 26. On February 23, Joseph Polentini, union-shop committee- man, and Roland Buechner, chairman of the union committee at Respondent's plant, had a conversation with Marvin Wirtz, plant superintendent. Polentini testified that they informed Wirtz that unless Brau paid the full fee of $25 by February 26 at 3:30 p.m., Brau's starting time, "we would-as far as we were concerned, we would be dropping him as far as the Union, as far as the committee and G & H is concerned" to which Wirtz replied, "Okay." Wirtz' version of the conversation is substantially the same except that he did not recall indicating his agreement. Polentini testified that later the same day, February 23, he telephoned Brau and informed him that if he did not pay the reinstatement fee at the start of his (Brau's) work shift on February 26, "the Company according to our contract would have to release him." Brau's version of their conversation is substantially in accord with that of Polentim, except that he also testified that he told Polentini that he had a receipt showing that he "had until March 2nd to pay." Wirtz, Polentini, and Brau testified as to the events on February 26, 1962, which occurred when Brau reported for work. The testimony of Polentini and that of Brau are substantially in accord. Following is a reconstruction of the events gleaned from all of their testimony. Shortly before Brau's shift started Wirtz came up to him and inquired if he "had squared up with the Union." Brau told him that he had not, that he had until March 2 to pay the balance of the fee. Wirtz asked Brau to come with him to talk to Polentini and there was a brief conversation with Polentim about Brau's failure to pay the $25 in full. Then the three of them went to talk to Buechner (the union committee chairman). Brau's failure to pay the $25 was reported to Buechner, and Brau explained that he had paid $5 and that he had been given an extension until March 2 to pay the balance. Polentini said to him, "I gave you notice for the full $25, not any part." Polentini's testimony, which I credit, continues: I said, well, have you or haven't you got the full $25' and he told me he had a receipt for $5, that he had paid $5 on it, and at that time, I explained to him again the terms of the contract and I said unless you had a receipt for the full 25, you are through here so far as we are concerned, the committee, and Mr. Buechner at this time pointed out, well, we will extend it if you go right down right now and pay the $25, we will give you an extension and accept it right now. All through the conversation, Marv was there, too, and then Mr. Brau looked at Marvin and said, are you going to let them do this to me, is that right, and Marv looked back at Brau and said, well, I have no choice, and that was it. Polentini further testified that: I had given him a final notice on the 23rd for the full 25, and if he had worked out any other arrangement with somebody I didn't know about and I didn't believe was right in the first place, because I had given him notice for the full 25. As far as I could see at the time, that was the only thing that was acceptable as far as the final notice was for 25, and not any part of it. Brau claimed he showed the receipt to Wirtz which Wirtz denied. Polentini testi- fied that he did not see Brau do so. Although I do not find that Wirtz saw the receipt, I do find that he was made aware of its existence and its purport. Brau did not go to work that day and the record is silent as to whether he ever tendered the balance of $20 to the Union or attempted to establish that he had an extension until March 2 by getting some ruling from Petersen or the union office. The Company took no G & H PRODUCTS CORPORATION 739 action with respect to Brau's employment status until after the period material to the issue herein. (He was recalled to work on May 1, 1962.) It neither notified him that he could not work, nor that he would be permitted to work, and its records are silent as to what his status was during the material period. The Issues The issues litigated herein are as follows: 1. Whether, at the request of the Union, Respondent terminated or suspended Brau's employment. 2. Whether, if there was such a termination or suspension , it occurred at a time when Respondent had reasonable grounds for believing that membership in the Union was denied to Brau for a reason other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining mem- bership, i.e., the $25 reinstatement fee demanded of him. (The issue was not raised whether the reinstatement fee was an appropriate prerequisite to Brau's membership under the proviso of Section 8(a) (3) of the Act, but rather General Counsel appears to have assumed its appropriateness. Neither is there any question raised as to the validity of the union-security clause involved herein ) Respondent contends, in essence, that Wirtz took no action which could be con- strued as a discharge of Brau, and, in any event, Wirtz could not exercise his au- thority to discharge without consulting the Company's vice president .3 In view of Wirtz' response (that he had no choice) to Brau's question as to whether he was "going to let them [the union committeemen, Polentim and Buechner] do this" to him, and of Wirtz' authority, as plant superintendent, to hire and fire, I am of the opinion that Brau could reasonably have understood that, if he did not comply with the committeemen's demand that he pay his reinstatement fee, or succeed in obtaining a ruling from Petersen or the Union that he did have an extension to March 2 which should be honored, the Company would not permit him to continue to work. Brau apparently did not attempt to do either, and, therefore, reasonably could have assumed that his employment was terminated, or, at least, suspended until he established himself as a member of the Union in good standing .4 Even if Brau knew that Wirtz was required to consult with the Company's vice president before he could exercise his authority to discharge an employee, as claimed by Respondent, I do not believe it was incumbent upon Brau to determine whether Wirtz had or had not consulted with the vice president before he stated the position of the Company. However, for the reasons set forth below, I do not find it necessary to determine whether Wirtz' statement (which gave Brau the basis for assuming he was discharged or laid off after having failed to adjust the matter of the reinstatement fee) was tantamount to a discharge or layoff. The other issue in the case is whether or not Wirtz' statement was made when Wirtz had reason to believe that Brau was being denied membership in the Union for some reason other than the nonpayment of his reinstatement fee. There is nothing in the record to indicate the existence of some other reason. General Counsel argues that, since Wirtz was aware of Brau's claim that he had an extension to March 2, Wirtz' statement was made "at a time when the Employer had reasonable grounds for believing that membership was denied for some reason other than his failure to pay" the reinstatement fee. General Counsel cites F. J. Burns Draying, Inc., 129 NLRB 252, in which it was held that an employer which dis- s By letter dated July 24, 1962, Respondent moved to have Incorporated in the record the finding of the Wisconsin Industrial Commission, issued July 20, 1962, on an appeal by Brau from a determination that he had voluntarily terminated his employment with the Company. The finding Is as follows : He was not, therefore, discharged by the Employer. Rather, he terminated his employment as the result of a dispute with the Union and this termination was not acquiesced in or instigated by the employer. Under the circumstances, the termina- tion was not with good cause attributable to the employer, for a compelling personal reason , or to take another job On July 27 , 1962, the Trial Examiner issued a rule to show cause why the motion should not be granted and General Counsel's response thereto opposing the motion was received August 2, 1962. Good cause not having been shown for the denial of the motion, the motion is hereby granted In finding that this evidence is admissible, however, I do not find that it has any binding effect in this proceeding ' It is not necessary to determine which of the two it was, since the only remedy sought is backpay for the period before he was recalled to work on May 1, 1962 672010-63-vol. 139 48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged an employee at the request of a union, when it had knowledge of the fact that the employee had tendered the required dues and initiation fees (for which he was delinquent) to the Union and that the Union had accepted the tender, discharged him at a time when it had reasonable cause to believe that membership was denied the employee for some reason other than a failure to pay required dues and initiation fees. General Counsel attempts to equate the cited case with the instant one, con- tending that a valid extension agreement is equivalent to a tender and acceptance thereof. In order to establish the existence of a valid extension agreement, General Counsel indulges in assumptions which are unwarranted. First, he assumes that the extension which Petersen granted Brau did not require Brau to make payment of any part of the $25 until March 2. This is clearly con- trary to the record. Both Petersen and Brau testified that a schedule of partial pay- ments was set up with the final one to be made by March 2. Second, General Counsel assumes that, even if it be conceded that Brau was delinquent with respect to his first scheduled payment of $5, "By accepting the $5 on February 19, 1962, and never offering to return it, the Union waived its right to demand Brau's discharge under the terms of the Union Security Agreement." General Counsel cites no authority in support and, furthermore, overlooks the fact that, whether it be according to the schedule testified to by Brau or by Petersen, Brau was delinquent on February 26 with respect to two $5 payments. Even if there was a waiver by the acceptance of the $5 with respect to the failure to make timely payment of the February 13 installment, he was in default with respect to the February 16 and 23 installments. Third, General Counsel assumes that the extension agreement was modified by the wording of the receipt. Brau knew that the terms of his extension agreement were at variance with the receipt, if he assumed that the wording of the ieceipt deferred the due date of the entire balance of $20 to March 2. I am not of the opinion that, under the circumstances in which the receipt was obtained, Brau was entitled to believe that Petersen or the Union had so modified the extension agreement. Even if it had been incumbent upon Wirtz to investigate the validity of Brau's claim to an extension, as General Counsel contends, he would have been confronted with the necessity of resolving the legal questions as to whether the extension agree- ment was still in force despite Brau's default on the required payments, and whether the receipt given by a secretary who did not have authority to modify the agreement, nevertheless, did modify the agreement. I do not believe, therefore, that the claimed extension agreement herein can be said to be equivalent to a tender and acceptance thereof and am of the opinion that the Draying case, cited by General Counsel, is not applicable to the issues in this case. In any event, on February 26 when the committeemen made their demand on Brau in Wirtz' presence, it was evident to Wirtz that they sought to invoke the union- security clause because of Brau's failure to pay the reinstatement fee in full. If he had had any suspicion that there was some other reason, it would reasonably have been dissipated by Buechner's offer to Brau of the opportunity to go to the union office and rectify the default. Further, General Counsel contends that, in view of Brau's assertion of an exten- sion to March 2, it was incumbent upon Wirtz to "at least call the union office." General Counsel overlooks the fact that Wirtz did not forthwith discharge or lay off Brau, but, at most, indicated to him that, if he did not straighten out the matter of the fee with the Union, the Company would have to abide by the union-security clause. Although I am of the opinion that, because he did not adjust the matter, Brau reasonably assumed that the Respondent would not allow him to work, I am also of the opinion that Wirtz could reasonably have assumed that, since Brau was given the opportunity to adjust the matter at the union office, he (Wirtz) would receive word from either some representative of the Union or from Brau before the Company need take action under the union-security clause. Consequently, it does not appear that there was any reason for Wirtz to call the union office, contrary to General Counsel's contention. Under the circumstances disclosed, even if it were to be found that Wirtz' state- ment was tantamount to a notice of discharge or layoff contingent upon Wirtz' failure to adjust the matter of the fee, there does not appear to be a sufficient basis for drawing the inference that Wirtz, at the time he made the statement, had reasonable ground to believe that Brau was being denied membership for any reason other than the failure to pay the reinstatement fee. On the contrary, it appears that the com- mitteemen were motivated solely by the desire to collect the reinstatement fee and I am convinced that such was Wirtz' understanding. See General Motors Corpora- tion, Packard Electric Division, 134 NLRB 1107. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: PENNSYLVANIA LABOR RELATIONS BOARD 741 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section :2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8 (a)(3) and (1) of the Act by advising Brau to the effect that, if he did not adjust the matter of his reinstatement fee with the Union, the Company would have to abide by the union-security clause in the existing collective-bargaining agreement between the Company and the Union. RECOMMENDED 1ORDER Based upon the above findings of fact and conclusions of law, it is recommended that the complaint herein be dismissed in its entirety. Pennsylvania Labor Relations Board and Chartiers Country Club and Bartenders Union Local No. 188, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO and Hotel & Restaurant Employees Alliance, Local No. 237, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. AO-42. October 31, 1962 ADVISORY OPINION This is a petition filed by the Pennsylvania Labor Relations Board, herein called the State Board, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. Thereafter, Chartiers Country Club, herein called the Employer, filed a "Response to the Petition for Advisory Opinion" and a supporting brief. In pertinent part, the petition,' the response, and brief, show as follows : 1. There is presently pending before the State Board two repre- sentation proceedings involving employees of the Employer (Cases Nos. 56 and 57, year of 1962) filed by Bartenders Union Local No. 188, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and by Hotel & Restaurant Employees Alliance, Local No. 237, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, herein called Local 188 and Local 237, respectively, as well as an unfair labor practice charge Case No. 73, year of 1962, filed by Local 237 against the Employer. 2. The Employer, incorporated under Pennsylvania law, is a non- profit organization which enjoys a Bureau of Internal Revenue tax exemption. It has 300 bondholder members and, in addition, over 300 .social members. For its membership, the Employer operates a golf and country club at Crafton, Pittsburgh, Pennsylvania, where it pro- vides the usual recreational facilities of a country club, and operates 1 With the petition for Advisory Opinion , the State Board also filed a transcript of the record before it in the two representation proceedings hereafter mentioned. 139 NLRB No. 54.