Great Lakes District, Seafarers' Int'l Union

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF UNITED PAPERMAKERS AND PAPERWORKERS , AFL-CIO, AND ITS LOCAL 790, AND TO ALL EMPLOYEES OF CONTINENTAL CAN COMPANY, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT in any manner cause or attempt to cause Continental Can Com- pany, Inc., to discharge employees because they have protested the manner in which union officers conducted the affairs of the Union and/or Local 790, or otherwise engaged in concerted union activities , or to discriminate against its employees in any manner in regard to their hire or tenure of employment , except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees of Continental Can Company, Inc., or any other employee member of this Union, in the exercise of the 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 organiza- tion, as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify, in writing, Continental Can Company, Inc., and the employees named below, that we have withdrawn our objection to their employment and that we have no objection to their reinstatement and employment: Leon Boguszewski James Greco Wolodymyr Jakovenko Joseph DeCicco Mickey Greco Richard Romanski WE WILL make whole the above-named employees for any loss of pay they may have suffered as a result of the discrimination against them. UNITED PAPERMAKERS AND PAPERWORKERS, 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. Great Lakes District , Seafarers' International Union of North America, AFL-CIO [Tomlinson Fleet Corporation ] and Wilbur D. Kilfoyle. Case No. 8-CB-757. November 27,1964 DECISION AND ORDER On June 15, 1964, Trial Examiner Sidney Sherman issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 Trial 149 NLRB No. 109. GREAT LAKES DISTRICT , SEAFARERS ' INT'L UNION 1115 Examiner's Decision, the exceptions and briefs , and the entire record in this case, and hereby adopts the Trial Examiner 's findings, con- clusions, and recommendations.' [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. We do not adopt the Trial Examiner's comments at footnote 20 of his Decision re- specting certain witnesses for the Respondent whose testimony he did not credit. TRIAL EXAMINER'S DECISION The original charge herein was served upon the Respondent on October 1, 1963, the complaint issued on January 22, 1964, and the case was heard before Trial Examiner Sidney Sherman on March 4 and 24, and May 25, 1964. Respondent filed a brief with the Trial Examiner. The issue litigated was whether Respondent caused or attempted to cause the Company to discharge Kilfoyle for reasons proscribed by the Act, thereby violating Section 8 (b) (2) and (1) (A). Upon the entire record and my observation of, the witnesses , I adopt the following findings: 1. THE BUSINESS OF THE COMPANY Tomlinson Fleet Corporation, herein called the Company, has a principal place of business at Cleveland, Ohio, and is engaged in transporting cargo on the Great Lakes between ports located in several States of the United States. The parties stipulated, and I find, that its annual gross revenue from its interstate operations exceeds $50,000. It is accordingly found that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Great Lakes District, Seafarers' International Union of North America, AFL-CIO, herein called Respondent, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent violated Section 8(b)(2) and (1) (A) of the Act by causing the Company to discharge Kilfoyle for failure to pay dues with respect to a period when he was not employed by the Company. The answer denies any violation of the Act. A. Sequence of events For some years prior to 1962, Kilfoyle, a member of Respondent, had worked for the Company as a wheelsman. When, in June 1962, a dispute arose between him and the Union over his alleged breach of a union rule by procuring employment for his son on a Great Lakes vessel, an agent of Respondent, Bluitt, relieved Kilfoyle of his Union book, giving him a receipt therefor in the form of an "in-lieu slip," 1 which erroneously recited that Kilfoyle's dues were paid up to 1966. The significance of this misstatement will appear later. On August 11, 1962, Kilfoyle was laid off as a wheelsman, and did not return to work until more than a year later-August 14, 1963-and then only as a watchman (a lower classification than wheelsman), as he did not have sufficient seniority to return as a wheelsman. His vessel was the G. A. Tomlinson. On July 15, 1962, the Company and the Respondent entered into a contract for a term of 1 year, which contained a clause requiring that, as a condition of continued employment, all employees covered by the contract become members of the Respond- ent within 31 days after (1) the date of execution of the contract, or (2) their date of hire, whichever was later, and pay their "regular dues and/or initiation fees." (The 'The action was apparently a necessary prelude to the filing of Intraunlon charges against Kllfoyle. 1116 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD dues rate was $20 per calendar quarter. ), , This provision was continued without change in a contract effective for 1 year from July 15 , 1963. , When he returned to work in August 1963, Kilfoyle owed dues . for the last two quarters of 1962 and' the first three quarters of 1963, and , under the Respondent's constitution, his status was that of a suspended member. On August 13, the day before he returned to work for the Company , Kilfoyle, pur- suant to the Company's instructions,, reported to an agent of Respondent, Boudreau, for "clearance." The latter cleared Kilfoyle, but only after reminding him of his dues delinquency and giving him a slip which showed that he owed dues for five quarters as well as an unspecified reinstatement fee, and which bore a notation that the foregoing dues and fee were to be paid within 31 days. While aboard the G . A. Tomlinson, Kilfoyle encountered various agents of Respondent, but they made no request for dues until September 17, when "Scotty" Aubusson, a representative of Respondent , boarded the vessel and made a dues demand. (The exact terms of such demand are controverted and will be considered below. ) Failing to receive a satisfactory response to such demand , the Respondent, on September 18, wrote the Company citing the fact that Kilfoyle was "in arrears in his dues," and had been "afforded an opportunity" by Boudreau , Aubusson, and vari- bus other agents of Respondent, to pay his dues but had refused, and concluding with a request for Kilfoyle's discharge under the union-shop clause of the Respondent's contract. On September 20 the Company discharged Kilfoyle in compliance with Respondent's request. B. Discussion The complaint alleges that Respondent violated , inter alia, Section 8(b) (2), which forbids labor organizations or their agents- to cause or attempt to cause an employer to-discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initia- tion fees uniformly required as a condition of acquiring or retaining member- ship.... Specifically, the complaint alleges that Respondent on September 20, 1963 , caused the Company to discharge Kilfoyle, pursuant to a union -shop clause in the current (1963-64 ) contract between Respondent and the Company, because he "failed to pay dues to Respondent for a period of time when he was not employed" by the Company. The General Counsel appears to have litigated the case on the theory that the gist of Respondent's violation was its insistence that Kilfoyle pay dues for a period during which he was unemployed-namely, the last two quarters of 1962 and the first two quarters of 1963.2 Additionally, General Counsel contends, although the complaint does not expressly so allege, that Respondent 's procurement of Kilfoyle 's discharge was unlawful because it was not only for failure to comply with an excessive dues demand, but also for failure to contribute to Respondent 's publication , "The Log." As against these various contentions , the Respondent apparently asserts that (1) its only demand was for dues for the current quarter, (2) in any event, the alleged demand for back dues would not be improper, as a union-shop clause applicable to Kilfoyle was in effect during the period to which such demand related , and Kilfoyle's obligation under such clause was not suspended by reason of his layoff, and (3) Kilfoyle was, moreover, not entitled to any relief, because he failed to make a proper dues tender and there is no basis for excusing such tender. These defenses will be considered in order. 1. The Respondent's demand The determination of the substance of Respondent 's demand upon Kilfoyle depends on a resolution of conflicting testimony as to the events of September 17. Analysis of the relevant evidence impels me to find that Respondent's representative , Aubusson, on that date demanded that Kilfoyle pay dues for the current quarter and the four preceding quarters. This finding is based on the following considerations: a. The fact that there is no dispute that Boudreau 's oral demand, on August 13, and his written notation related to past, as well as current dues, and such notation called 2 General Counsel appears to concede that Kilfoyle was covered by a valid union- security clause throughout that period and that but for his unemployment be would be required to pay dues for such period as a condition of employment. GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 1117 for payment of all arrears within 31 days, which corresponded to the grace period in the union-shop clause . I infer from this that it was Boudreau 's position that payment of all arrears was required as a condition of continued employment under the union- shop clause, and Respondent 's reference in its September 18 discharge request to the fact that Boudreau had offered Kilfoyle an opportunity to pay his dues , evidences its awareness of, and acquiescence in, Boudreau 's position. b. The testimony of Kilfoyle regarding the crucial conversation between him and Aubusson on September 17, which testimony was to the effect that Aubusson opened the conversation by announcing that he had "orders from headquarters to pull [Kil- foyle] off the ship or collect [his ] dues and [his ] reinstatement"; and, that when Kilfoyle showed Aubusson his "in lieu" slip with the notation that his dues were paid to 1966, Aubusson offered to waive the reinstatement fee, demanding only "$100 dues and $5 for the Log." In opposition to the foregoing , Respondent offered the testimony of Aubusson that on September 17, in conformity with the instruction of Respondent 's secretary- treasurer, Farnen, the witness requested only that Kilfoyle pay the dues for the current quarter . However, when, under ci oss-examination , Aubusson was confronted with his pretrial affidavit, in which he named Respondent's business agent, Drewes, rather than Farnen , as the one who had instructed him as to what demand to make upon Kilfoyle, Aubusson abruptly repudiated his piior testimony as to Farnen's role in the matter, acknowledging the veracity of the affidavit . Aubusson thereby gave the lie not only to his own testimony but also to that of Farnen (who had preceded him on the witness stand ), that prior to the September 17 incident , he instructed Aubusson not to request from Kilfoyle any dues for past quarters . Moreover, Farnen , himself, substantially modified his own testimony 3 and, when pressed to state whether he would still have requested Kilfoyle's discharge if he had paid his dues foi the current quarter, Farnen vouchsafed only the evasive answer that he could not legally have made such a request. Finally, Brown , who was a witness to the September 17 incident , and was called by Respondent, while insisting , albeit somewhat equivocally, that Aubusson had asked only for "current dues," admitted that he heard Aubusson say to Kllfoyle, "You have got to bring this up . You are not even paid up for this quarter " The significance of the emphasized word is not apparent unless the preceding sentence related to a demand for dues for past quarters. In view of the foregoing matters affecting the credibility of Aubusson and Farnen, as well as the circumstantiality of Kilfoyle's testimony regarding Aubusson's dues demand, I credit Kilfoyle on that point and find that Aubusson on September 17, in effect, told Kilfoyle that unless he paid all five-quarters dues owed by him, Respondent would procure his discharge. 2. The propriety of Respondent 's demand As to Respondent's second contention-that a demand for back dues , even if made, was proper-General Counsel apparently agrees that such a demand would have been proper had Kilfoyle not been laid off during the period with respect to which such dues accrued , but he contends that the fact that Kilfoyle was so laid off suspended his dues obligation under the 1962-63 union -security clause for the duration of such layoff. This contention raises a question which does not appear to have been squarely decided by the Board 4 3 Thus, he testified at first that in instructing Aubusson to insist only on current dues, he was acting on advice given him by a Board agent. However, after considerable equivoca- tion and evasion on this point , under cross-examination , Farnen abruptly abandoned any claim that he had spoken to the Board agent before the 17th , admitting that his fist con- versation with her had been after that date ; and he advanced , for the first time, the contention that it was his own attorneys who had advised him before that date what dues he could legally demand of Kiltoyle * General Counsel cites Convair, A. Division of General Dynamics Corporation, 111 NLRB 1055, for the proposition that an employee 's obligation under a union -security contract is suspended with respect to any period that lie is separated from the bargaining unit. Re- spondent , on the other hand, cites National Automotive Fibres , Inc, 121 NLRB 1358, for the contrary proposition While the facts in the latter case aie closer to the instant one, the resolution of the point for which Respondent cites the case was not necessary to the decision thereof, and it is therefore arguable that the Board 's holding on that point was merely dictum. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel contends that Respondent 's demand was improper , in any event, because it included a request that Kilfoyle make a $5 contribution to The Log,5 and that, in view of the context in which the demand was made, the inference is warranted that compliance with this request , as well as the demand for back dues , was regarded by Respondent as a condition of Kilfoyle 's continued employment 6 Since, for reasons that will appear below, the result reached in this case would be the same, whether the Respondent 's demand was proper or improper, I will make no finding on that point but will assume that Aubusson 's demand for five-quarters dues was improper, in that Respondent could lawfully require Kilfoyle to pay the dues only for the current quarter as a condition of remaining aboard ship. 3. The "free rider" issue We turn now to the contention that Kilfoyle is not entitled to any relief because he made no tender of dues in any amount and there is no basis here for excusing such tender As already noted, Section 8(b)(2) forbids a union to cause discrimination against an employee "with respect to whom membership ... has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.. . . [Emphasis supplied.] It is clear that there was no physical "tender" by Kilfoyle of any part of the dues owed by him on September 17. However, General Counsel contends that such physical tender was excused here under the rule of the Eclipse Lumber case, and related cases,8 holding that insistence by a union on the payment of an amount in excess of what it may properly demand, relieves the employee of the duty to tender a lesser amount , in view of the apparent futility of such tender; and that it is unlawful for the union to procure the employee's discharge for failure to tender under such circumstances However, so far the Board has not had to consider whether to extend this rule to an employee who not only makes no physical tender but also, as Respondent contends was the case here, is resolved not to pay any part of his dues. In resolving this issue, it becomes necessary to consider, first, whether Kilfoyle in face entertained such a resolve. Kilfoyle acknowledged that on September 17, in response to Aubusson's dues demand, he mentioned the fact that he had a "receipt" (the "in lieu" slip) showing that his dues were paid to 1 966, but Kilfoyle insisted that he, nevertheless, unconditionally offered to pay the current quarter's dues and that he was prepared to make such pay- ment on the spot. However, according to Aubusson, Kilfoyle at first refused to pay any dues, claiming that the "in lieu" slip absolved him of any dues obligation until 1966; and, although Kilfoyle subsequently offered, inter alia, to pay all dues owed by him, this was only upon condition that Respondent would upgrade his seniority as a wheelsman.a Although I have credited Kilfoyle as to another phase of this conversa- tion (Aubusson's demand for back dues), for reasons set forth below I am constrained to reject his testimony that he unconditionally offered to pay the current quarter's dues Such testimony, unlike the balance of his version of the incident, departs from a direct quotation of the colloquy between him and Aubusson and is expressed in con- clusionary language. It thus lacks the directness and the cogency of the rest of his account of that incident Even more significant is the mutually corroborative testi- mony of certain of Kilfoyle's shipmates that prior to his encounter with Aubusson Kilfoyle had not only referred to the fact that he had a statement from Respondent that his dues were paid up to 1966, but also had announced that he intended to hold the Union to this statement and had no intention of paying any accrued dues for that reason. Kilfoyle's own testimony on this point is replete with equivocation and self- contradictions He admitted showing the "in-lieu" slip to various persons, including 5 It is clear that such contribution did not constitute "periodic dues [ or] initiation fees uniformly required as a condition of acquiring or retaining membership ," within the meaning of the Act. The Respondent's constitution makes no reference to such a contribution and Farnen admitted that it was normally not compulsory but purely ,voluntary 8 Respondent contends that this ground for finding a violation of Section 8(b) (2) was not alleged in the complaint or adequately litigated . For reasons indicated in the text, 1 do not pass on this contention 7 The Eclipse Lumber Conipeny, Inc, 95 NLRB 464 8E g., Murphy's Motor Freight, Inc, 113 NLRB 524 9 He would thereby be assured steady employment in that classification GREAT LAKES DISTRICT, SEAFARERS ' INT'L UNION 1119 Aubusson , and, when pressed as to whether he had ever announced his intention to take advantage of the error in the slip , he gave the following answers successively: (1) "Not that I know of," ( 2) that he could have said it, but did not recall, ( 3) (when he returned to the stand ) that the question of his holding the Union to Bluitt's mistake "was not brought up," and (4) that he had not intended to take advantage of the Union's mistake. Even more puzzling are Kilfoyle's attempts to explain why he had not paid his current quarter's dues before Aubusson's visit. When pressed on this point, Kilfoyle at first answered , "I can't tell you ," but promptly thereafter ascribed such failure, rather confusedly , to the fact that he was waiting for a hearing on Respondent's charges against him When asked why he nevertheless offered to pay his current dues on September 17, despite the fact that such hearing had not yet been held, Kilfoyle gave a series of unenlightening answers. Finally, he contended that he would have paid his dues upon the expiration of the contractual grace period, if he had in the meantime received notice of the hearing on the Union 's charges against him or of the Board's action on his charges against the Union. However, he promptly attempted to retract the foregoing italicized qualification , interjecting the remark that he had been advised by a "Judge Parsons" in Chicago to pay his current dues. The apparent implication on this was that it was this advice by Judge Parsons which prompted him to offer to pay the current quarter 's dues. However, Kilfoyle later professed uncertainty as to whether he had spoken to Judge Parsons before or after the Aubusson incident ; and finally appeared to abandon any reliance on alleged advice by Judge Parsons , asserting that he had been advised by his lawyers in August 1963 to pay his current dues In addition , Kilfoyle was uncertain as to whether he had told Respondent he would not pay his dues until he had a hearing on the charges against him; and, although on his first appearance on the stand he admitted that he had not told the ship's master on September 20 that he had offered to pay his current dues, he subse- quently attempted to retract this admission. In view of all the foregoing circumstances reflecting on Kilfoyle 's credibility in this area , I credit the testimony of Respondent's witnesses that, even prior to his encounter with Aubusson , Kilfoyle had taken the position , in conversation with his shipmates, that he would take advantage of Bluitt's mistake and not pay any dues prior to 1966, and I credit Aubusson 's testimony, which is substantially confirmed by Kilfoyle , that on September 17, Kilfoyle asserted that he owed no dues till 1966 because of the "in-lieu" slip, and I reject Kilfoyle's testimony that he nevertheless offered unconditionally to pay his dues for the current quarter. I find rather, as Aubusson's testimony implies, that Kilfoyle attempted to use the error in the "in-lieu" slip as a bargaining point, in his effort to exact concessions from Respondent , offering, in effect, inter alia, to waive any reliance on Bluitt's mistake and pay all his back dues, in return for upgrading of his seniority as a wheelsman 10 In sum, the only conclusion I can draw is that Kilfoyle was determined not to make any dues payments until 1966, unless he received some quid pro quo. There remains to be considered whether Kilfoyle is nevertheless entitled to relief under the Eclipse Lumber rule-or, in other words , whether that rule excuses not only a failure to tender, but also a determination not to pay , any dues. A cardinal purpose of union-security provisions in collective -bargaining contracts is to distribute equitably the cost of union representation among those benefiting thereby, or, in other words , to eliminate the "free rider," i e., the employee who, while content to receive the benefits of union representation , is unwilling to bear his fair share of the cost thereof. It was this purpose which led Congress to incorporate in the Wagner Act the proviso to Section 8 (3) of that Act, which sanctioned union- security arrangements generally. In 1947, in considering amendments to the Wagner Act , the attention of Congress was drawn to the fact that unions had made improper use of union -security clauses, invoking them not only against free riders , but also against members who refused, for example, to pay political assessments, or who gave testimony in court adverse to a union agent 11 While recognizing the continuing validity of the policy of elimi- nating free riders, Congress sought ways and means of safeguarding against the fore- going abuses that had grown up under the blanket sanction given to union -security arrangements by the Wagner Act.12 To this end, Congress amended the old provi- 10Kilfoyle admitted that there was a discussion between him and Aubusson on Septem- ber 17 of a general settlement of Kilfoyle 's differences with Respondent , which included reterence to the matter of upgrading of his seniority as a wheelsman " Legislative History, Labor-Management Relations Act, 1947, p. 1010. I= Id. pp. 411-413 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions of Section 8(3) by adopting the present language of Section 8 (a)(3), and incorporating therein, inter alta, proviso (B), and the related provisions of Section 8(b)(2). These changes were addressed specifically to the problem of how to permit unions to eliminate free riders, while at the same time preventing them from effecting discharge of employees for reasons unrelated to their willingness to pay their proper share of the cost of union representation .13 The solution devised was to outlaw any discharge under a union -shop clause for reasons unrelated to the failure of the employee to make a proper tender. The Senate report, in referring to proviso (B) as it appeared in the Senate bill,14 states: . expulsion from a union cannot be a ground of compulsory discharge if the worker is not delinquent in paying his initiation fee or dues .... It is evident from the foregoing that proviso (B) (and the parallel language of Section 8 (b) (2)) do not reflect any change in the attitude of Congress toward free riders, but seek to protect from discharge only employees who are not free riders and are willing to pay their proper dues obligations. The Board 's view has been consistent with this approach . Thus, in The Baltimore Transfer Company of Baltimore City, Inc ., case,15 which involved the discharge of an employee at a union 's request pursuant to a union -shop clause , because of dues delinquency , it appeared that the employee had been fined by the union and that the union had repeatedly refused to accept his dues unless he paid the fine and caused his discharge because of the delinquency thus created . The respondent contended that, while the nonpayment of the fine was not a permissible ground for discharge, the discharge was nevertheless not unlawful because there had been no "tender" by the employee of his duties , as required by proviso (B) in Section 8(a)(3) and by Section 8 ( b) (2). In rejecting this contention , the Board noted that the employee had initially made a physical tender of his dues, which had been rejected , and that there- after the employee had repeatedly advised the union of his willingness to pay his dues, but without avail. The Board then stated , "Under these circumstances, we find that the complainant had clearly indicated his immediate willingness to pay his dues and arrearages and was not obliged to continue to make the useless gesture of actu- ally handing the money to the Union 's cashier each time in order to fulfill the obliga- tion of `tender' required by proviso (B) of Section 8(a)(3) and Section 8(b)(2)." Thus the Board, while dispensing with the requirement of a continuing tender, stressed the fact that the employee had manifested his willingness to pay what the union was entitled to demand (and, hence, could not be denominated a free rider). In the The Eclipse Lumber Company, Inc., case,1° cited by the General Counsel, the Board similarly found unlawful the discharge pursuant to a union -security contract of one, Marl, after he had rejected the union 's demand that he pay a sum which included not only current dues but also dues for a period antedating the contract . However, it appeared that Marl, before his discharge, had indicated to his foreman and his shop steward his willingness to pay the current dues . While finding that there had been no "formal tender" by the employee in any amount, the Board held that such tender was "unnecessary in cases involving proviso (B) when the circumstances indi- cate that such a tender would have been a futile gesture " Thus, although not always clearly articulated , the thrust of the foregoing and related cases appears to be that, where the circumstances are such that it may be inferred that but for the union 's excessive demand the employee would have made a proper tender and that he was deterred from doing so by the apparent futility thereof, it would be inequitable to deny relief to the employee because of his failure to make such tender 17 It does not follow that this "futility " rule should be extended to the case of an employee, like Kilfoyle, who , as found above, was an avowed "free rider," and who, it is clear, was not deterred from making a tender by the nature of Respond- 11 Ibid 14 lbid 1E 94 NLRB 1680 10 95 NLRB 464. 17 Thus, in Brunswick-Balke-Callender Company, 115 NLRB 518 , 520, the Board took pains to negative any implication that the claimant was a free rider , stressing the "per- suasive evidence that [he ] was willing to meet any lawful financial obligations to the Union to retain his job " See also Peerless Tool and Engineering Co , 111 NLRB 853, Westinghouse Electric Corporation ( Sunnyvale Plant ), 96 NLRB 522 , Bloomingdale's, 107 NLRB 191 ; Cottman's Builders Supply Co, Inc, 101 NLRP. 327 . In all of these cases, it was found that at some point the employee involved had tendered or offered to pay the sum that the union was entitled to exact In none of these cases was there any finding, as there is here, that the employee was averse to paying such sum IBEW, LOCAL 322 1121 ent's demand, but was motivated solely by his aversion to paying any part of his dues obligations and would not have complied even with a proper demand. I do not believe that the decided cases require that a failure to tender under such circumstances be excused, or that such a result would be consistent with the congressional policy underlying Section 8 (b)(2) and proviso (B) in Section 8(a)(3). That policy, as we have seen, was not to protect free riders against excessive union demands, but rather to insure that employees who were willing to pay their financial obligations were not discharged for improper reasons. It is one thing to dispense with the statutory requirement of objective proof-in the form of a tender-of an employee's willingness to pay his fair share of union representation, where the union's conduct deters him from satisfying this requirement. It is quite a different matter to require no proof at all of such willingness to pay, or to deem immaterial the proof in the record that the employee was in fact unwilling to pay for reasons unrelated to the terms of the union's request. Accordingly, in view of all the foregoing considerations , I find that, by causing Kilfoyle's discharge, Respondent did not violate Section 8(b) (2)18 or ( I) (A) of the Act, and I will recommend that the complaint be dismissed. RECOMMENDED ORDER It is ordered that the complaint herein be, and it hereby is, dismissed.19 18 Had the record shown that the Company , in discharging Kilfoyle, had reasonable grounds for believing that his discharge was sought , at least in part, because of his re- fusal to pay for The Log, it would be arguable that such discharge fell within the inter- diction of proviso (A) of Section 8(a) (3), and that , by causing such illegal discharge, Respondent violated Section 8 ( b) (2). However, General Counsel disclaimed any reliance on such a theory , and the record does not, in any event, warrant a finding that the Company had reason to believe that Aubusson had demanded that Kilfoyle pay for The Log. (Even if one credits Kilfoyle 's testimony that he told the master of his vessel that Aubusson had asked for "105 dollars ," this would hardly constitute notice that this sum included $5 for The Log.) Moreover , the considerations cited above that militate against extending the protection of Section 8(b) (2) to "free riders" would still be applicable. 19 One cannot condemn too strongly the conduct of Respondent 's agents in this case in giving admittedly false testimony in their efforts to defeat Kilfoyle 's claim. That Kilfoyle, as I have found, resorted to like measures is no justification. However, this is a matter for consideration by another forum. International Brotherhood of Electrical Workers, Local 322 1 and Ets-Hokin & Galvan/Hood Corporation (A Joint Venture)' and International Union of Operating Engineers 3 and Inter- national Hod Carriers, Building and Common Laborers of America.4 Case No. 27-CD-53. November 27, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by Ets-Hokin & Galvan/Hood Corporation, herein called the Employer, alleging that the International Brotherhood of Elec- trical Workers, Local 322, herein called IBEW, had violated Section 1 Appearances were also made on behalf of the International Brotherhood of Electrical Workers, Locals 1525 and 111. 2 The name of the Joint Venture appears as amended at the hearing. 3 Counsel appearing on behalf of the International Union of Operating Engineers, also represented its Locals 326, 9, and 571. *Counsel appearing on behalf of the International Hod Carriers , Building and Common Laborers of America , also represented its Locals 880 and 1219. 149 NLRB No. 112. 770-076-65-vol. 149--72