The Leece-Neville Co.

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Leece-Neville Company and International Brotherhood of Electrical Workers, Local Union 1377, AFL-CIO and Mary Jaksic. Cases Nos. 8-CA-2507 and 8-CB-551. December 11, 1962 DECISION AND ORDER On March 12, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents 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. There- after, the General Counsel, the Charging Party, and the Respondent Union filed exceptions to the Intermediate Report and briefs in sup- port of their exceptions. Respondent Union also filed a brief in support of the balance of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case. We find merit in the General Counsel' s exceptions and accordingly adopt the findings and conclusions of the Trial Examiner only to the extent consistent herewith. 1. We find, in disagreement with the Trial Examiner, that the Respondent Union violated Section 8(b) (2) and (1) (A) of the Act by causing the Respondent Company to discharge on May 3, 1961, the seven employees involved in this proceeding.' On May 2, 1961, the Union's business agent, Zicarelli, wrote to the Company requesting the discharge, pursuant to the terms of its union- security contract with the Company, of these seven employees on the ground that they were no longer members in good standing in the Respondent Union. The employees were discharged by the Com- pany the next day without any investigation of the employees' claims that they were not delinquent in payment of their dues to the Union. The General Counsel asserts and the Respondents deny that these employees were in fact not delinquent in their dues payments. In order to determine this issue, it is necessary first to consider certain events which occurred during the period from May through August 1958, particularly the Union's refusal to accept certain tenders of dues made by these seven employees during that period 2 ' Edward Clark , Anton Draganic, Joseph Dudash , Mary Jaksle, Betty Sipos , Anna Tomko, and Louise Yomnick. 2 The Union excepts to the Trial Examiner's failure to find that Section 10(b) barred "all evidence of matters which occurred" 6 months before filing of the charge on July 14, 1961. This would bar evidence relating to tenders of dues during this period of 1958, excluding evidence on the issue with respect to the Union bylaws then in effect; in this connection , the Union relies on the dischargees ' failure to protest against the refund of 140 NLRB No. 2. THE LEECE-NEVILLE COMPANY 57 The Union bylaws in effect during this period contained, inter alia, the following provisions : SEC. 2. The monthly dues shall be $4.00. SEc. 4. One dollar refund of dues collected for attendance of monthly meetings. [Emphasis supplied.] 3 In May 1958, dischargees Jaksic and Sipos tendered the Union their dues in the amount of $3. The tender was rejected on the ground that the "Union's dues were $4.00, and if [they] wanted $1.00, they would have to attend the monthly meeting and take it at the door." Jaksic and Sipos made another tender of dues for July 1958, this time in the amount of $4, which was rejected on the ground that it was com- mingled with the tender of dues for employees in the amount of $3. The remaining five complainants made tenders of dues in the amount of $4 for the months of July and August 1958. The tenders were rejected on the ground that they were commingled with the tender of dues for other employees in the amount of $3. Thereafter, all seven complainants continued to make current payment of dues in the amount of $4 until their discharge in May 1961. These payments were accepted by the Union, but applied to the earliest months for which the Union's records showed no payment. On May 1, 1961, the Union's books showed that all of the complainants, except Dudash, were in arrears in payment of their dues for the months of February, March, and April, 1961, while Dudash was shown to be in arrears for these months and for the month of January 1961. The General Counsel citing the Electric Auto-Lite case' contends that under the provisions of the Union's bylaws the amount of dues was only nominally set at $4 per month; and that actually the dues were $3 per month with $1 charge or penalty for nonattendance at union monthly meetings incorporated into the $4 nominal dues; and that for this reason the tender of dues in May-August 1958 in the amount of $3 per month was a valid tender. The Trial Examiner re- jected this contention and found, in accord with the Union's position, that under the bylaws, as well as by practice, the dues were fixed at $4 per month, although for a time until November 1959 members, upon dues provision of the bylaws, and on an amendment of the bylaws in November 1959, which repealed the provision in issue We find no merit in the Union's contention. As the discharges of May 3, 1961, occurred within the 10(b) period, the earlier events shed- ding light on the discharges are admissible in evidence under Local Lodge No. 1424, IAM, AFL-CIO (Bryan Manufacturing Co.) v N.L R.B., 362 US. 411. See also Plumbers A Pipe Fitters Local Union 214 (D L Bradley Plumbing and Heating Co ), 131 NLRB 942, enfd. 298 F 2d 427 (C A 7). Although Member Leedom dissented in Bradley Plumbing, the cases are in his opinion distinguishable as here, unlike Bradley, the Union engaged in conduct within the 10(b) period which is found to be an unfair labor practice 3 Since November 30, 1959, the amended bylaws no longer provide for refund of $1 for meeting attendance 4The Electric Auto-Lite Company, et al., 92 NLRB 1073, enfd. 196 F. 2d 500 (C.A. 6), cert. denied 344 U.S 823. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attending monthly meetings, were handed $1 as a "reward for attend- ance." He then concluded that the Board's decision in the Electric Auto-Lite case for this reason was distinguishable on the facts and did not apply here. We do not agree. In the Electric Auto-Lite case, the Union's bylaws were amended to provide for the increase in the regular monthly dues from $1.50 to $2 with the further provision that the members who attended each of the monthly meetings would be exonerated, upon appropriate evi- dence, from the payment of the additional 50 cents. In practice, the members who attended a monthly meeting received attendance cards which authorized them to claim exemption from the payment of the 50-cent charge. The Board held that the charge of 50 cents with the condition attached was a "fine" rather than part of regular monthly dues; and that "regardless of the means adopted to institute this charge, the necessary and intended effect was to fix a penalty upon those members who did not attend the monthly meetings." [Em- phasis supplied.] The Board said : The statute specifies that the "periodic dues" be "uniformly required." This we read essentially to include the requirement that such dues be charged to all members alike or that any dis- tinction in amount be based upon reasonable general classifica- tions. A charge which distinguishes between individual members who attend particular meetings and those who do not attend par- ticular meetings, in our opinion, is not one "uniformly" applied. Moreover, we do not doubt that a member's attendance at a union meeting is highly desirable and salutary to carry out the demo- cratic process. But, as we have already held (citing Union Starch cf, Refining Co., 87 NLRB 779), the Act as written may not be used as a means of requiring such attendance. The Act's ma- chinery is equally unavailable to enforce the collection of a fine to accomplish this union objective. [Emphasis supplied.] Accordingly, the Board held that, as the Union's charge for nonat- tendance at union meetings was a "fine" rather than a payment en- compassed within the term "periodic dues," the discharge for non- payment thereof was violative of Section 8(a) (3) and 8(b) (2) of the Act. We see no essential difference between the two cases. As in the Electric Auto-Lite case, the Union's bylaws here, by incorporating into the nominal monthly dues of $4 a charge of $1 for nonattendance at union meetings, created a dues structure based upon attendance or nonattendance at union meetings. Members who did not attend union meetings had to pay $4 per month. For members who attended such meetings the dues were fixed at $3 a month. In the Electric THE LEECE-NEVILLE COMPANY 59 Auto-Lite and other cases,' the Board held that the statutory provision that the periodic dues and initiation fees be "uniformly required" includes the requirement that dues be charged to all members alike, and that any distinction be based upon a reasonable classification. A classification of employees based upon attendance or nonattendance at union meetings was held to be not a reasonable classification. The Trial Examiner attempts to distinguish the Electric Auto-Lite case on the ground that here the Union intended the $1 payment to oper- ate as a "reward for attendance" rather than a charge for nonattend- ance. However, the bylaws by defining the payment as the "One Dollar refund of dues" clearly tied it up with the dues structure. This the Union had no right to do. We find that the complainants herein were not lawfully required in the summer of 1958 to pay as a condi- tion of employment a charge of $1 for nonattendance at union meet- ings, and that the tender of dues in the amount of $3 was at the time a valid tender of dues. We also find that the tender of dues in the summer of 1958 in the amount of $4 per month, but rejected by the Union on the ground that it was commingled with the tender of dues in the amount of $3, was likewise a proper tender, inasmuch as there was in fact no commingling of sufficient and insufficient tenders. Union's practice with respect to suspension for delinquency in pay- ment of dues : As we have found that the tenders of dues in 1958 were valid tenders, the Union improperly applied subsequent payments made by these employees. Consequently, all complainants, except Dudash, on May 2, 1961, when the Union asked for their discharge, were in arrears in payment of dues only for the month of April. Dudash was also delinquent in payment of dues for the month of March. The dues for the month of May did not become due and payable until Friday, May 5.6 The record shows that the Union had no consistent or uniform prac- tice with respect to suspension or termination of membership for delinquency in payment of monthly dues. Section 3 of article XXIII of the Union's constitution provides for suspension of a member who is indebted to his local union for 3 months' dues. The proviso to sec- tion 3 provides that when members work under an agreement requiring monthly payment of dues, a grace period of only 21 days shall be al- lowed, unless it is extended by the local union.' Section 4 of the same s The Electric Auto-Lite Company, et at., supra; National Automotive Fibres, Inc., 121 NLRB 1358, enfd . as modified 277 F. 2d 779 (C.A. 9) ; see also Food Machinery and Chemical Corporation, 99 NLRB 1430. 61n its notice to members posted in 1958, the Union announced that the dues were due "the first Friday of each month " and could be paid either directly , or by mailing checks to the Union. 7A proviso to section 3 reads as follows: However, when any "BA" member is working under an agreement requiring monthly payment of dues, a grace period of only 21 days after the first of the month following 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD article requires that "any member indebted to his local union for 6 months' full dues shall be dropped from membership." In its com- munications to members, however, the Union citing these sections of the constitution referred to penalties for falling behind in dues pay- ments for 3 and 6 months, but made no reference to any 21-day grace period. Thus, in his letter of November 1959 to employee Watson, Union Business Agent Zicarelli, after reciting the pertinent provisions of the constitution, concluded : "As of December 1, 1959, you will be 5 months in arrears. Your dues therefore will be $4.00 a month for 5 months and $1.00 reinstatement fees, a total of $21.00." In his letter to Norma Clark of February 27, 1959, Zicarelli after citing section 4, article XXIII, of the constitution, said : "Inasmuch as you are in de- fault of full payment of dues for at least 6 months, ... it becomes our duty to drop you from membership in this Local Union." Em- ployee Sturtz testified, without contradiction, that official letters from the Union referred to penalties for dues arrearages of 6 months' dura- tion, but did not refer at all to any 21-day grace period. Although the seven complainants, according to union books, have been in arrears for 2 or more months since 1959, nothing was done by the Union in the way of penalizing them for alleged delinquency until May 2, 1961. Indeed, since the very inception of its contract with the Company in 1944 the Union invoked its union-security clause only on one occasion when in April 1961 it requested the discharge of Homove and Koszow- ski, who were in arrears in payment of dues for 16 and 13 months, respectively. The record thus shows that the Union followed a lax policy with respect to collection of dues, and had no uniform or consistent policy with respect to suspension from membership for nonpayment of dues. It is nevertheless clear that at all times relevant to this proceeding the Union considered the grace period to be at least 3 months; and at the time of the discharges, none of the dischargees was in fact delinquent for that long a period. As the Board has held, however, invoking a union-security clause under such circumstances to secure the discharge of a delinquent mem- ber, does not per se constitute conclusive evidence of discrimination.' The test, as in all cases of discharge, is whether the real reason for invoking the union-security clause is the delinquency of a particular member whose discharge is sought by the union or the delinquency is the indebtedness shall be allowed unless the grace period is extended by the L U. Involved. The General Counsel and the Union are in disagreement with respect to the exact mean- ing of the clause. The Trial Examiner made no finding. As we find that, In practice, the Union has extended the grace period beyond 21 days, it is not necessary for us to pass upon the precise meaning of the clause. "Special Machine and Engineering Company, 109 NLRB 838 , enfd 222 F. 2d 429 (C.A. 6). THE LEECE -NEVILLE CO VIPANY 61 used merely as a pretext for discrimination against him e However, the Union's lax policy is not without significance. As the Board said in Special Machine : Thus, the critical issue here is whether the Union in fact re- quested Collinsworth's discharge because of his dues delinquency or for some other reason. The fact that the Union had no uniform practice of suspending and invoking the union-security clause against the delinquent members for discharge, supports a finding of discriminatory motivation. [Emphasis supplied.] Delinquency not the real reason: All seven dischargees were mem- bers of a dissident group. After their attempt to force a new election of officers had failed, the dissidents formed a rival organization incor- porated as Electrical Workers Alliance, Inc. Upon forming this organization, they withdrew checkoff authorizations in favor of the Union and began paying their dues through a collector. A collector would collect their monthly dues and send in the total collected to the Union. This practice of sending dues through a collector for the group continued until complainants' discharge in May 1961. It was a source of annoyance and irritation to the Union, for Business Agent Zicarelli testified that "they were doing this just to harass the Union." Significantly, when, on advice of the union counsel, the Union in April 1961 decided to invoke the union-security clause against delinquent members, it invoked the clause only against the seven complainants, all of them members of the dissident group. Zicarelli offered no satis- factory explanation why out of some 20 or more delinquent members he singled out for discharge on May 2 only members of the dissident group. Upon the entire record, and particularly in view of the Union's policy and practice of leniency in collecting dues in arrears, and singling out for suspension only members of the dissident group, we find that the Union invoked the union-security clause against the com- plainants for reasons other than their delinquency of 1 and 2 months' duration in payment of dues. We believe, moreover, that the Union has waived any right it may have had to secure the discharge of these employees because of their alleged delinquencies. Ever since September 1958 and until April 1961, the complainants made their successive payments of current dues through Collector Brodnick on the assumption that their tender of dues for 2 months in 1958 was a valid tender. The Union accepted these successive payments of dues with the knowledge of such claim, but, adhering to its position that the tender was invalid, backdated such payments by 2 months. Such a state of affairs continued without any 9 Special Machine and Engineering Company, supra ; Local 169, Industrial Division International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Rheem Manufacturing Company), 111 NLRB 460; Puerto Rico Drydoek d Marine Terminals, Inc., 123 NLRB 1298, 1300 , enfd. 284 F. 2d 212 (C.A.D.C.), cert. denied 364 U.S. 883. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change until the Union's decision to invoke the union-security clause against the complainants. After Zicarelli's letter of September 10, 1958, complainants Draganic, Sipos, Clark, Tomko, and Yonmick were never contacted by any union agent concerning the subject of dues delinquency. Jaksic and Dudash testified that they were approached in July 1960 and February 1961 , respectively, by the union agents, but when they told the agents that the Union refused the tender of dues for 2 months, the subject matter was dropped . Having unlawfully re- fused to accept from the complainants the tender of 2 months ' dues in 1958, and thereafter for some 30 months having accepted their suc- cessive payments of current dues with the knowledge of their claim that the tender was lawful, the Union in our opinion is barred from reversing its position and invoking the union-security clause without an adequate notice to the dischargees.lo We agree with our dissenting colleagues that full attendance at union meetings is desirable. There is no issue in this case as to the legality, standing alone, of the method used internally by the Union to stimulate attendance. What is in issue, and what we are finding unlawful, is the en forcenient of the disparity in the Union's dues structure, predicated on attendance or nonattendance at union meet- ings, through utilization of the union-security agreement between the Union and the Company to effectuate the discharge of employees who have in fact tendered all the dues they could lawfully be required to tender. On the entire record, we conclude that by causing the Respondent Company to discriminate against the seven complainants with respect to whom membership in the Union was terminated for reasons other than their failure to tender the periodic dues and the initiation fees uniformly required as a condition of retaining membership , the Re- spondent Union violated Section 8 (b) (2) and ( 1) (A) of the Act.ll 2. We find, in disagreement with the Trial Examiner, that by dis- charging the seven employees, pursuant to its union-security contract with the Union, upon the receipt of the Union's letter of May 2, 1961, stating that each of them was "no longer a member in good standing," the Respondent Company violated Section 8(a) (3) and ( 1) of the Act. The Company concedes that it made no investigation or other inquiry, except to consult its legal counsel, to seek verification of the validity of the Union's demands before it effected the discharge of the seven employees on May 3, 1961. Yet, the record discloses that the dischargees protested to management that they were not behind in their dues and that the five of them expressly advised the Company's 10 See International Woodworkers of America, AFL-CIO, Local Union 13-433 (Ralph L. Smith Lumber Company ), 119 NLRB 1681 , enfd. 264 F. 2d 649 ( C.A. 9), cert. denied 361 U. S. 816. 11 Puerto Rico Drydock & Marine Terminals, Inc., 123 NLRB 1298, 1302, enfd . 284 F. 2d 212 (C.A.D.C.), cert. denied 364 U.S. 883. THE LEECE-NEVILLE COMPANY 63 representatives that the Union had refused their tender of dues for 2 months. Thus, Anna Tomko testified, without contradiction, that Superintendent Speck informed her, Jaksic, Sipos, and Yomnick that they were being discharged because they did not pay their dues. Tomko said that her dues were all paid up, that they paid their dues through Brodnick. Jaksic then told Speck "about the 2 months back [dues] that the Union refused." Speck replied that "He didn't know anything about it. All he got was this letter and he has to discharge us, and that is all." Yomnick, Jaksic, and Sipos corroborated Tomko's testimony as to what occurred during this interview with Speck. At some point during this interview with Speck, Rose Brodnick, the dues collector for the dissident group, was called in. Brodnick confirmed to Speck that "these people are paid up." Speck said: "Well, I don't know anything about it . . . I just got to discharge them." Norma Clark, who paid dues for her husband, Edward Clark, one of the com- plainants, testified without contradiction that she called up Personnel Director Siegworth about the discharge of her husband and told him that her husband "was not really behind in dues. That the Union had refused 2 months payment," and that Siegworth replied : "He didn't want to do anything with that. That I should contact Zicarelli." Siegworth said: "That he had to fire Eddie [Clark] and that is exactly what he did." Having been informed by the complainants of the tender and re- jection of dues, and being aware that all of them were not on the checkoff list but were making payments of dues through Brodnick, a "well known suspended member of the Union" and the collector of dues for the dissident group, and that Brodnick confirmed to Superin- tendent Speck that they had paid their dues, the Company was under an obligation to seek verification of the validity of the Union's demands for discharge and was not justified in relying on the Union's letter.'a Having failed in these circumstances to make an investigation, which would have disclosed that there was tender and rejection by the Union of the 2-month dues in behalf of the dischargees, the Company may not justify the discharge on the ground that it had no reasonable grounds for believing that membership of the complainants in the Union was terminated for reasons other than the failure of the com- plainants to tender periodic dues and initiation fees uniformly re- quired as a condition of retaining membership in the Unon.13 12 Puerto Rico Drydock & Marine Terminals, Inc, supra. is Peerless Tool and Engineering Co., 111 NLRB 853, where the Board found that hav- ing been informed by the employees that the union had refused to accept their tender of dues unless accompanied by payments to its strike fund, the employer was not justified in relying on the union aaent'^, statement that the dnea were not paid as proof th.it they had not been tendered See also May Department Stoics, Inc, 133 NLRB 1096, where the L'oard found that in the face of the divergent positions as to iihether or not the ih.- criminatee had resigned fiom the union and therefore did not have to pay due,, the em- ployer was under an obligation to seek further verification of the validity of the union'a demand 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent Company, having discriminatorily discharged the seven complainants on May 3, 1961, rehired them in December of the same year as new employees. We shall order therefore that the Respondent Company restore the complainants to their former or substantially equivalent positions without loss of seniority or other rights and privileges. It has been found that the Respondent Union caused the Respondent Company to discharge the seven complainants and that the Respondent Company in violation of Section 8 (a) (3) acceded to the Union's de- mand. Accordingly, we shall order that the Respondent Union and the Respondent Company jointly and severally make the said com- plainants whole for any loss of pay they may have suffered as a result of discrimination against them by payment to each of them of a sum of money equal to that which she or he would have earned as wages from the date of discharge to, in the case of Respondent Company, the date of reinstatement to their former or substantially equivalent posi- tions, and, in the case of Respondent Union and for the reasons set forth hereinafter, 5 days after notifications to the Company and to the dischargees that it has no objections to their reinstatement, less the net interim earnings. Backpay, including payment of interest at 6 percent, shall be computed in accordance with the Board's usual practices.14 As we have found that the Respondent Union caused the Company to discharge the seven complainants, it may terminate its liability for backpay only by a clear and unambiguous request for reinstatement of the complainants to their former or substantially equivalent em- ployment. This the Union failed to do. A few days after the com- plainants paid the dues alleged to have been in arrears, business agent Zicarelli orally requested the Company to rehire the complainants. On August 18, 1961, he also wrote to the Company stating that the Union had no objection to "rehiring" of the complainants. The record does not show that the Union at any time asked the Company to re- instate the complainants to their former positions without prejudice to their seniority or other rights and privileges they have enjoyed 14 Crossett Lumber Company , 8 NLRB 440 ; F. W. Woolworth Company, 90 NLRB 289; A.P.W. Products Co, Inc, 137 NLRB 25 For the computation of interest, see Isis Plumb- ing & Heating Co., 138 NLRB 716 For the reasons stated in the dissenting opinion in the Isis Plumbing case , Members Rodgers and Leedom are convinced that the award of Interest in this proceeding exceeds the Board 's remedial authority While adhering if) such view , for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. THE LEECE-NEVILLE COMPANY 65 before the discharge. Indeed, when the complainants were finally re- hired in December 1961, they were rehired as new employees. As the Union has never made a clear and unambiguous request of the Com- pany for reinstatement of the complainants to their former or sub- stantially equivalent positions, the request of August 18 was insufficient to cut off its liability for backpay.15 The unfair labor practices found to have been committed by Re- spondents go to the heart of the Act, and reflect a purpose, by unlawful means, likely to be executed in the future, to thwart the employees' exercise of their Section 7 rights. In order that the preventive purpose of our Order may be coextensive with the threat of future violations, we shall order that Respondents cease from in any manner infringing upon the employees' rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAw 1. The Leece-Neville Company is engaged in commerce within the meaning of the Act. 2. The Respondent Union, International Brotherhood of Electrical Workers, Local Union 1377, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Edward Clark, Anton Draganic, Joseph Dudash, Mary Jaksic, Betty Sipos, Anna Tomko, and Louise Yomnick, thereby encouraging membership in the Respondent Union, the Respondent Company, The Leece-Neville Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. 4. By causing the Respondent Company to discriminate against the above-named employees in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act, thereby restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(e) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 15 Fender Electric Instrument Company, Inc., 133 NLRB 676. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Respondent Company, The Leece-Neville Company, Cleve- land, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in International Brotherhood of Electrical Workers, Local Union 1377, AFL-CIO, or in any other labor organization of its employees, by discriminating in regard to their hire and tenure of employment or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above Union or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Edward Clark, Anton Draganic, Joseph Dudash, Mary Jaksic, Betty Sipos, Anna Tomko, and Louise Yomnick immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Jointly and severally with the Respondent Union, make them whole for any loss of pay each may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (d) Post at its plant in Cleveland, Ohio, copies of the attached notice marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being signed by the Respondent Company's representative, be posted im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places ie 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." THE LEECE-NEVILLE COMPANY 67 where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered , defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice marked "Appendix B. (f) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. The Respondent Union, International Brotherhood of Electrical Workers, Local Union 1377, AFL-CIO, Cleveland, Ohio, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Causing or attempting to cause The Leece -Neville Company, Cleveland, Ohio, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees of The Leece-Neville Company, its officers , agents, successors , and assigns, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Company make whole Edward Clark, Anton Draganic, Joseph Dudash, Mary Jaksic,. Betty Sipos , Anna Tomko, and Louise Yomnick for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Notify The Leece-Neville Company, Cleveland, Ohio, and the above-named employees, in writing, that it has no objection to the reinstatement of the said employees to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (c) Post in its offices in Cleveland, Ohio, the attached notice marked "Appendix B." 17 Copies of said notice, to be furnished by the Re- gional Director for the Eighth Region, shall, after being duly signed by an official representative of the Respondent Union, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicous places, includ- ing all places where notices to members are customarily posted. Rea- 14 See footnote 16, supra. 681-492-63-vol. 140-6 ,68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable 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 Eighth Region signed copies of the notice marked "Appendix B" for posting at the Re- spondent Company's premises, as provided above. Copies of said notice, to be furnished by the said Regional Director, shall, after be- ing duly signed by the Respondent Union's representative, be forth- with returned to the Regional Director for disposition by him. (e) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent Union has taken to comply therewith. MEMBERS FANNING and BROWN, dissenting : This case had its beginning in May 1958, when a dissident group .of members of the Union formed a rival organization, withdrew their .checkoff authorizations, and began paying their dues to the Union through a collector who was a suspended member of the Union. In paying dues from May to August 1958, some members of this group paid $3 and some paid $4, but the funds transmitted were commin- gled. There was in effect at that time a long-standing program for the stimulation of membership attendance at the Union's monthly meetings. Those who attended received a refund of $1 from the dues. The bylaws expressly provided in this connection that the dues were $4 per month and also provided for the $1 refund for attendance at the meeting. The Union considered those members transmitting $3 per month as being delinquent in their dues obligations and so notified them. Seven employees failed to square their arrearages. As a result, in May 1961, the Union requested their discharge under the terms of the union-security provision of the labor agreement cov- ering the plant. The Company complied. Our colleagues find the Union and the Company guilty of unfair labor practices. We disagree. Poorly attended business meetings, sometimes even a lack of a quorum to proceed, is common to a variety of voluntary associations. In addition to long-range educational programs to remedy this situa- tion, many organizations, labor organizations included, have resorted to door prizes, lotteries, refreshments, entertainment, and the like, to make business meetings better attended. Practical business needs as well as the salutary considerations of democratic action for having fuller membership participation in the affairs of voluntary organi- zations are too obvious for explication. In our opinion, moreover, the plain thrust of some of the recent amendments to the Act, Title I-bill of rights of members of labor organizations, is to encourage and assure members a more active and responsible role in governing their union and formulating its policy. This role has particular im- port, and significantly affects the public interest, where the involved THE LEECE-NEVILLE COMPANY 69 union is the exclusive statutory representative of all employees in a bargaining unit. Respondent Union is such a statutory representative. Because Respondent Union's bylaws spoke in terms of refunding a portion of dues for attending meetings, our colleagues consider the tie-in with the dues structure as converting the refund into a pro tanto penalty upon those members who do not attend. Essentially, however, such tie-in is not different from the use of union funds, obtained in the form of dues, for subsidizing the service of refresh- ments at meetings or the purchase of door prizes, as a turkey, for example, to be raffled off at a meeting. Of course, one may choose to describe the mentioned examples in the language of a penalty on union members who do not attend a meeting, viz, the nonattending member is penalized because, by his absence, he is denied an opportunity to win a turkey or other door prize, or to partake of refreshments, or, as here, to receive a dollar. We do not so regard these situations. In our opinion, these techniques to stimulate membership participation in union business affairs are legitimate devices to achieve a commendable objective in the opera- tion of labor organizations and are, as indicated above, in implemen- tation of statutory policy. Therefore, in determining the appropriate nomenclature, here, namely, "penalty or reward?" we agree with the Trial Examiner that the refund is a reward and so find. We believe, moreover, that by holding otherwise the majority is intruding into Respondent Union's internal affairs in a manner proscribed by the proviso to Section 8(b) (1) (A). The record establishes that the affected dissident group, by with- holding their proper dues, commingling their dues payments, and remaining delinquent for a period of 2 years, were attempting to harass, irritate, and embarrass the Union. They were well aware of the union-security provisions and received repeated notices of their dues delinquencies, yet made no bona fide attempt to come into the good standing required by the contract.18 Even though a union may have been lenient or even lax in enforcing union-security pro- visions of a contract, there is no requirement in law or fair dealing that it must continue to be so; 19 and we also do not believe that in undertaking a less lenient enforcement of the contract, a union must necessarily cause the discharge of all delinquents where the Union may achieve the same lawful objective by making an example of a few, providing, of course, and such was the case here, that the Union puts all affected employees on notice. The Union, by invoking the 11 Cf. General Motors Corporation, Packard Electric Division, 134 NLRB 1107. See also Producers Transport, Inc. v. N.L.R B., 284 F. 2d 438, 442-443 (C A. 7). ID North American Refractories Company, 100 NLRB 1151, 1155: "Nor does the fact that the Respondents had previously permitted delinquent members . . . 15 additional days to pay dues by a liberal application of their union-security clause mean that they were there- after required to extend the same leniency to all delinquent members as a fixed obligation of law" ; Standard Brands, Incorporated, 97 NLRB 737, 739-740. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security provisions of its contract, did no more than it was lawfully entitled to do, and it accorded the dissidents no less than they were entitled to receive. Accordingly, we would affirm the Trial Examiner and dismiss the complaint. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in International Brother- hood of Electrical Workers, Local Union 1377, AFL-CIO, or in any other labor organization of our employees, by discriminatorily discharging any of our employees, or discriminating in any man- ner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Edward Clark, Anton Draganic, Joseph Dudash, Mary Jaksic, Betty Sipos, Anna Tomko, and Louise Yomnick reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and will jointly and severally with the above- named Union make them whole for any loss of pay suffered as the result of the discrimination against them. All our employees are free to become, remain, or refrain from be- coming or remaining members in good standing of the above-named Union, or any other labor organization, except that this may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. THE LEECE-NEVILLE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full THE LEECE-NEVILLE COMPANY 71 reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have any questions concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF ELECTRI- CAL WORKERS, LOCAL UNION 1377, AFL-CIO, AND To ALL EM- PLOYEES OF THE LEECE-NEVILLE COMPANY, CLEVELAND, OHIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause The Leece-Neville Com- pany, Cleveland, Ohio, to discriminate against Edward Clark, Anton Draganic, Joseph Dudash, Mary Jaksic, Betty Sipos, Anna Tomko, and Louise Yomnick, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL jointly and severally with The Leece-Neville Company make whole the above-named employees for any loss of pay suf- fered as a result of the discrimination against them. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify The Leece-Neville Company, Cleveland, Ohio, that we have no objection to the reinstatement of the above-named employees to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 13 77, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-mentioned employees presently serving in the Armed Forces of the United States of their 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A charge in each of the above-entitled cases was filed on July 14, 1961, by Mary Jaksic, an individual. On November 24, 1961, the General Counsel of the National Labor Relations Board issued and served an order consolidating the cases and a com- plaint and notice of hearing thereon. On December 4, 1961, each of the Respondents filed an answer to the complaint. On January 4, 1962, General Counsel issued and served the first of several and varied amendments to his complaint, the others being brought forward during a hearing, held on January 15, 16, and 17, 1962, in Cleve- land, Ohio, before Trial Examiner C. W. Whittemore. Although the repeatedly amended complaint provides a remarkably confused array of allegations on the part of General Counsel, it is his basic contention, opposed by the Respondents, that in one way or another the Respondent Company has violated Section 8(a)(1) and (3) and the Respondent Union has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. At the hearing all parties, including the charging individual, were represented by counsel, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Oral argument was waived. Briefs have been received from General Counsel and the Respondents. On February 12, 1962, the Trial Examiner received from the Respondent Union a motion to correct the record in certain respects. It shows upon its face that it was at the same time being forwarded to all other parties with the request that if they opposed in any respect the motion, they so notify the Trial Examiner. No oppo- sition having been received, and the proposed corrections appearing to be proper, the motion is hereby granted and it is, together with the attached corrections, hereby made a part of the record. Disposition of the motions to dismiss, upon which ruling was reserved at the con- clusion of the hearing, is made by the following findings, conclusions, and recom- mendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Leece-Neville Company is an Ohio corporation, having its principal office and plant in Cleveland, Ohio, where it is engaged in the manufacture of small motors and related items. It annually ships finished products valued at more than $250,000, from its Cleveland plant to customers located in States of the United States other than the State of Ohio. The Respondent Company is engaged in commerce within the meaning of the Act. H. THE RESPONDENT UNION For many years the Respondent Union has been the recognized bargaining agent for employees of the Respondent Company. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and issues The issues of this case arise out of the fact that in May 1961, at the request of the Respondent Union, the Respondent Company discharged seven employees, includ- THE LEECE-NEVILLE COMPANY 73 ing the charging individual.' The discharges were effected upon receipt by the employer of written requests from the local 's business manager, stating as to each that he or she was, as of April 1, no longer a member "in good standing ," and citing a relevant provision in the existing contract which required , as a condition of em- ployment, that all employees covered by the agreement should become and remain members in good standing . General Counsel makes no claim that either the contract or the clause invoked is illegal. The original issue, as set out in the charges filed by Jaksic, was the claim that the Union caused to be discharged, and the employer did discharge, the seven employees "on grounds other than their alleged failure to tender periodic dues and initiation fees uniformly required as a condition of retaining membership." That simple issue appears to have become so well lost, or at least so obfuscated, in the maze of amend- ments to the complaint made before and during the hearing , that only in passing does General Counsel mention it in his brief. While ample evidence was developed during the hearing to support a finding that "grounds other than " delinquency in dues-paying had existed some years ago, which if continued as motivation might have been the cause of the Union's request, General Counsel makes small point of it in his brief. The issues which General Counsel finally and in his brief urges are: 1. Whether the Union's refund of $1.00 of its monthly dues of $4.00 to those members attending its monthly meetings during the period of May through August 1958 , constituted in effect a fine for nonattendance of such meetings. 2. Whether the tender of the two month's dues in behalf of each of the dis- chargees, whether in the amount of $3.00 or $4 .00, during the months of May through August 1958, rejected by the Union, was valid. 3. Whether the Union's written demand of September 10, 1958 , to the dis- chargees constituted a valid request for the retender of their rejected dues. 4. Whether on May 3, 1961, the seven dischargees had fulfilled their statutory obligation to tender periodic dues uniformly required by the Union as a con- dition of membership, so that therefore the union-shop clause in the contract did not sanction their discharge. 5. Whether the Employer had reasonable cause to believe , at the time that it effected the discharges of the seven alleged discriminatees , that the Union demands for their discharge did not meet the requirements of the second pro- visotoSec. 8(a)(3) of theAct2 Insofar as complications and confusion can be summarized , it seems to be Gen- eral Counsel's chief contention that the discharges were unlawful since in fact the seven employees were not delinquent in their dues in May 1961. B. Summary of facts The record reveals no material dispute as to the following facts: ( 1) Back in 1957 , a small group of dissident employees, while still members of the Respondent Union, attempted to organize a rival organization , incorporated as Electrical Workers Alliance, Inc. It was led by employees Josephine Sturtz and Rose Brodnik. (2) Upon the forming of this rival organization Sturtz and some others withdrew their authorizations for checkoff of their union dues. Sturtz collected their monthly dues and sent in the total collected directly to the Union. As a witness she admitted that this was done upon specific instructions from the counsel for the rival group to "harass" the Union. (3) In the early summer of 1958 Brodnick took over her role of dues collector for the group when Sturtz was transferred to another department. (4) For some years, and pursuant to the Union 's bylaws of 1944 , the uniform monthly dues had been and up to the time of the hearing continued to be $4. The pertinent bylaws: Sec. 3 The monthly dues shall be $4.00. Sec. 4 One dollar refund of dues collected for attendance of monthly meetings. Since November 30, 1959 , however, the amended bylaws no longer provided for re- fund for meeting attendance. 1 These seven are: Edward Clark, Anton Draganic , Joseph Dudash , Mary Jaksic, Betty Sipos, Anna Tomko, and Louise Yomnick 2In substance , the "second proviso" cited prohibits an employer from justifying such discharge "if he has reasonable grounds for believing" that membership in a union has been denied discriminatorily, or denied for reasons "other than failure " to pay dues uniformly required. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) In May 1958, the union business manager, with permission of the company management, had posted on the plant bulletin boards a notice to union members which stated: There seems to be some misunderstanding regarding the payment of Union dues and the check-off authorization cards. The authorization cards are merely a notice to the Company that the em- ployee wants his dues deducted from his pay. This method is nothing more than a convenience for you and your Union. Every employee must pay dues as a condition of employment. Whether you sign the authorization card or not, you are required by the contract to pay your dues. The dues are uniformly established at four dollars ($4.00) per month and due the first Friday of each month. If you did not sign the authorization card, you may pay your dues directly to the Union by the following methods: 1. Mail a check, payable to Local 1377, I.B.E.W., 3043 Superior Avenue, Cleveland 14, Ohio. 2. Pay directly at the office at 3043 Superior Avenue, Cleveland, Ohio. (6) On May 15, 1958, Sturtz sent to the Union a check for $50.60 with a covering letter stating that it represented the May dues for 14 listed employees 3 The Union's chief steward returned the check to Sturtz, stating that he would not accept the group remission, which was not itemized. Sturtz then obtained individual bank money orders and sent them in. Seven of them were in the amount of $4 each, the others were for $3. The Union accepted those made out for the correct amount of the monthly dues, but returned to Sturtz those for $3. (7) Among those who thus submitted only $3 for May 1958 were two employees involved in this case: Jaksik and Sipos. The union chief steward made it clear to Sturtz, according to her own -testimony, that he was rejecting the $3 money orders because the "Union dues were $4. If we wanted the $1.00 we would have to take it at the door." (As previously noted, at this time, as a reward for attending meetings the Union was following a practice of giving employees $ 1 at the meetings they attended.) (8) After Sturtz was transferred to another department Brodnick began sending in similar blanket bank money orders. (9) On July 30, 1958, the Union returned to her an order for $70 with covering explanation that the "monthly dues is [sic] $4 00 and two names appear on the enclosed list [which had been sent in by her] for only $3.00." The same letter requested that the correct amount be sent in. (10) In August Brodnick pursued the same practice of sending in a blanket check, previously rejected by the Union, commingling full payments of $4 with partial payments of $3. The Union again returned the check as inadequate submission of proper dues. (11) It appears to the Trial Examiner to be unnecessary to burden this report with a full analysis of the entire exchange of submissions by Brodnick and rejections by the Union during the summer of 1958.4 In any event, as a witness Brodnick admitted that checks returned to her by the Union during that period, totaling some $154 were turned over by her to the attorney for the rival organization, and that she did not return to the employees concerned the money they had given her. She further admitted that although some of these employees had asked for a return of their money, she "couldn't" give it to them. (12) On September 10, 1958, the Union's business manager wrote to each of some 30 employees, including all of the 7 here involved, warning them of bylaw provisions for suspension when 3 months in arrears and pointing out the specific months for which their dues were delinquent. Most of this number promptly went to the Union and squared accounts at once. (13) There is no evidence that any of the seven employees here involved, after receipt of the union letter of September 1958, protested to any union official or representative, or made any grievance or accounting move regarding the business manager's official notice to them of their delinquency. Nor did they again attempt to pay, directly or indirectly, the dues for July and August 1958, first submitted through Brodnick. O The list also contains the names of two individuals who, apparently on the sicklist, were submitting only a per capita tax of 80 cents each. 'Particularly does such detailed analysis seem unnecessary because , as found below, the Trial Examiner cannot agree with General Counsel's chief theory that the Union's rejection of dues as offered was invalid. THE LEECE-NEVILLE COMPANY 75 (14) There is evidence that at least some of them queried Brodnick at the time, and although aware that she, herself, had been suspended from the Union, rested upon her assurance that "legal counsel" had told her that they had nothing to worry about since their dues had been lawfully tendered, even if rejected. (15) From September 1958 until early in 1961, the Union accepted the successive months' dues of $4 from each of the seven employees, but returned receipts showing that such payments were being applied 2 or more months back-to the month following the last, according to union records, when proper dues had been received and accepted. (16) It was stipulated during the hearing that it was the "Union's consistent proce- dure to apply any dues received from any member to the earliest month for which its records showed n, payment as having been made." Thus it is clear that at all times since September 1958, the seven dischargees had been reminded once a month, when receipts reached them, of their delinquency according to their union records. (17) It was also stipulated at the hearing that at no time has the Union requested monthly dues of $3 from any individual. (18) According to the credible testimony of Business Manager Zicarelli, in Feb- ruary 1961, there were about 20 employees, of the many hundreds at the plant, who were delinquent in payment of their dues. He and the chief steward spoke about the matter directly to some of this number, including Dudash, one of the seven here in- volved. Some of the delinquents paid up. (19) In April the Union demanded the discharge of two employees who were more than a year in arrears. The Company honored the demand.5 (20) On May 2, the union business manager requested, in writing, the discharge of the seven here involved,6 stating in the letter that each of them was "no longer a member in good standing" and citing the contract clause being invoked. (21) The undisputed testimony of the Respondent Company's personnel director, E. J. Siegworth, is to the effect that prior to the receipt of the Union's letters on May 3, management had no knowledge or information concerning the dues delin- quency of any of the seven, and that he immediately communicated with counsel, both in Atlanta and Cleveland, who advised him that the contract provision required observance. (22) All seven were thereupon discharged. (23) As a group the discharged employees went to the Board's Regional Office for advice. A Board agent advised them to go to the Union and pay the dues they were, according to the Union, "behind in." (24) On May 4 the seven went to the union office and paid dues as follows: Name: Dues paid for Dudash --------------------- January, February, March, April, May. Clark ----------------------- February, March, April, May. Draganic -------------------- Do. Jaksic ----------------------- Do. Sipos ----------------------- Do. Tomko --------------------- Do. Yomnick -------------------- Do. (25) Thereafter the Union notified the Company that the seven had regained their good standing and that it had no objection to their rehire. In December 1961, all were rehired as new employees? C. Issues in the light of the foregoing facts The Trial Examiner concludes and finds that there is no merit in General Counsel's claim No. 1, set out in section A, above, to the effect that the Union's refund of $1 to members attending meetings was actually a fine for nonattendance. He cites as authority The Electric Auto-Lite Company, et al., 92 NLRB 1073, enfd. 196 F. 2d 500 (C.A. 6), cert. denied 344 US. 823. The facts are distinguishable. In the cited case the uniform dues were increased, at local level, by an amount which members were not required to pay if they at- tended union meetings. The Board said, in part (p. 1074): 5 The two employees were Homorec and Koslowski . Their discharges are not in issue. O From the testimony of Mrs Clark, wife of Edward Clark, who customarily took care of paying her husband 's dues through Brodnick, that the latter did not send in dues for any of the seven for the month of April 7 The Company's explanation for the delay in rehiring, which seems reasonable, is that until December there had been a number of regular employees in an economic layoff status. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In practice, the record shows, the additional charge of 50 cents did not become due until after a member had failed to attend a meeting. Those present at the meeting received attendance cards which furnished the basis for their exemption from paying the 50-cent charge. Significantly, this attendance card indicated that a "50-cent assessment" would belevied for non-attendance. The constitution of the International Union provides that the dues of each member shall be $1.50 per month, without indicating that local unions, or any sub- ordinate body thereof, may increase this amount. The constitution also spe- cifically authorizes the levying of "fines" for nonattendance at membership meetings. Upon the basis of such evidence the Trial Examiner concluded that the regular monthly dues were not increased by 50 cents, but that a "fine or assessment" in the same amount was levied against absentee members. Like the Trial Examiner, we believe that, regardless of the means adopted to insti- tute this charge, the necessary and intended effect was to fix a penalty upon those members who did not attend the monthly meetings. We cannot consider such a charge, with the conditions attached, as regular monthly dues In our opinion, it is nothing other than a fine. In the instant case, as previously noted, both the bylaws provision and practice -establish that the monthly dues here have never been increased, nor lowered, but have continuously remained at $4. For a time, and until November 1959, upon attending meetings, members were handed $1 as a reward for attendance. To the Trial Examiner it appears that only by strained and painful reasoning may the conclusion be reached that a reward, if not received, by nature thereupon be- comes a penalty. Consistent with that unreasonable conclusion would be one equally awry: that the uniform dues in this case actually were only $3. And this General Counsel does not specifically claim. Indeed, not until his second of several amendments to the complaint, did it apparently occur to him to allege that the "real reason" for the discharges was the Union's "insistence" that employees "pay a fine assessed against them for non-attendance at union meetings." Nor can the Trial Examiner agree with General Counsel's claim No. 2-to the effect that the Union was not privileged to reject certain tender of dues, in blanket form, by Brodnick and Sturtz, as described herein Nothing discernible in the Act empowers the Board to police accounting policies, either of employers or unions, unless such policies in their application are clearly shown to be unlawful. The senders of the blanket money orders, containing some dues less than the proper amount, were notified of the reasons why such were not acceptable, and no sub- sequent efforts were made to straighten out the matter. Employees who accepted Brodnick's assurance, even if they understood from her that such assurance was based upon "legal advice," that merely sending in the blanket check constituted pay- ment, did so at their own risk. General Counsel's claim No. 3-that the Union's letter to the seven employees of September 1958 was not a "valid request for the retender of their rejected dues"- is also without merit, in the opinion of the Trial Examiner. Surely there can be no question but that notification of delinquency constitutes a valid request that a bill be paid-and each of the seven received such notification. As to claim No. 4-to the effect that on May 3, 1961, the seven had in fact ful- filled their obligation to tender periodic dues uniformly required-the evidence plainly does not support it. Finally, as to claim No. 5-that the employer, in effect, had reasonable grounds for "believing" that the discharges were requested for reasons other than discrimi- natory denial of membership or failure to pay dues-the record is barren of any supporting evidence. Having found, in effect, that the seven employees were in fact delinquent in dues, that they were not at the time of the request for discharge members in good standing, and that for this reason the Union made its demand, the Trial Examiner declines to speculate as to whether or not, subjectively, some member of management "had reason to believe" that the union official making the request in turn had some reason in his mind other than the one stated. In short, the Trial Examiner concludes and finds that the evidence fails to sustain the allegations of the complaint that the Respondent Union and the Respondent Company violated, respectively, Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3) of the Act. It will therefore be recommended that the complaint be dismissed in its entirety. RECOMMENDATION Upon the basis of the above findings and conclusions, and upon the entire record in the case, the Trial Examiner recommends that the complaint in Cases Nos. 8-CA-2507 and 8-CB-551 be dismissed.