Missile & Electronic Dist. Lodge 508

MISSILE & ELECTRONIC DIST LODGE 508 Missile & Electronic District Lodge No. 508, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO and its Local Lodge No. 2228 (Lockheed Missiles and Space Company) and Leroy A. Katen. Case 20-CB-2270 April 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On December 14, 1970, Trial Examiner James T. Barker issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions,' and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Missile & Electronic District Lodge No. 508, International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local Lodge No. 2228, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. ' We have noted the attachment to the exceptions, the alleged weekly report of Grand Lodge Representative Foote, offered in support of Respon- dent's contention that Leroy Katen appeared at Respondent's offices on July 2, 1970, to tender his dues, or, in other words, after the Respondent had requested the Company to terminate Katen's employment We find the weekly report, even if considered admissible at this stage of the proceedings, to be inconclusive on this point and are satisfied there is substantial evidence supporting the Trial Examiner's findings that Katen's visit to the union office and his tender of dues occurred on July 1, 1970 190 NLRB No. 22 61 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T BARKER, Trial Examiner: This matter was heard at San Jose, California, on October 6, 1970, pursuant to a charge filed on July 6, 1970, by Leroy Katen, an individual.' A first amended charge was filed on July 13, and a second amended charge filed on August 21 by Leroy Katen. On August 31, the Regional Director of the National Labor Re- lations Board for Region 20 issued a complaint and notice of hearing alleging violations of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties timely filed briefs with me on November 13. Upon consideration of the briefs and upon the record in this case, and my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY At all times material herein Lockheed Missiles and Space Company, hereinafter called Lockheed or the Company, has been a California corporation engaged in the manufacture of aircraft and missile systems with offices and manufacturing facilities located in Sunnyvale, California. During the 12-month period immediately preceding the issuance of the complaint herein, Lockheed, in the course and conduct of its business operations, purchased and received supplies valued in excess of $50,000 which supplies were shipped to it directly from points located outside the State of California. During the same period of time, Lockheed, in the course and conduct of its business operations, shipped goods and products valued in excess of $50,000 to points located outside the State of California. Upon the admitted facts, I find that at all times material herein Lockheed has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Missile & Electronic District Lodge No. 508, International Association of Machinists and Aerospace Workers, AFL- CIO, and its Local Lodge No. 2228, hereinafter referred to either as the Union or the Respondent, concedes that it is a labor organization within the meaning of Section 2(5) of the Act, and I so find. III THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that the Respondent vi- olated Section 8(b)(1)(A) and (2) by causing Lockheed to terminate Leroy Katen for reasons other than Katen's failure to pay periodic dues uniformly required as a condition of acquiring and retaining membership in the Union. A thresh- old issue is raised as to whether the Union's demand served upon Lockheed preceded or followed Katen's tender of dues A further and principal issue implicit in the General Coun- sel's contention is whether, in light of the Board's decision in General Motors Corporation, 134 NLRB 1107, a labor organi- zation violates Section 8(b)(1)(A) and (2) by demanding the termination of an employee who, prior to the demand, has tendered all dues and fees uniformly required under a con- tractual union-security arrangement ' Unless specified otherwise all dates refer to the calendar year 1970 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In substance, the Respondent contends that Katen's tender of dues followed the Union's demand. Further, the Respond- ent asserts that, in any event, its actions in demanding Ka- ten's termination were lawful in that Katen's tender of dues was made subsequent to his automatic expulsion from mem- bership for nonpayment of periodic dues uniformly required and came at a time subsequent to the expiration of the time allowed for the payment of said dues. B. Pertinent Facts 1. Background facts a. Katen's work and union membership Leroy Katen has been employed by Lockheed for approxi- mately 9-1/2 years. He has served as a test technician for approximately 2 years. At the time of the hearing, he had been reinstated to his position of employment with Lockheed as a test technician. At all times pertinent herein the Union and Lockheed were parties to a collective-bargaining agree- ment containing a maintenance of membership clause. The agreement in effect at times pertinent herein contained provi- sions for voluntary dues checkoff, but unit employees who did not sign such an authorization were permitted to pay their dues directly to the Union. Katen paid his dues directly by check or cash. During two separate periods of employment by Lockheed, Katen had been a member of the Union. His initial period of membership dated from September 6, 1966, and terminated on March 23, 1967. Thereafter, Katen entered a salaried position and was not required under the collective-bargaining agreement to retain his membership in the Union. However, on July 11, 1968, Katen was again reinstated into the Union and remained a member of the Respondent until June 30, 1970, when the events pertinent to this matter transpired. The evidence establishes and the parties concede that Ka- ten's membership dues were paid through March 1970. There is no evidence that on any occasion previous to June 30 Katen had permitted his membership to lapse. In calendar year 1969, however, on March 20, he paid his dues for the 3-month period February, March and April. On this occasion he was delinquent in his payment of February dues and late in his payment of March dues. b. Dues delinquency procedures Under Respondent's organizational arrangement, District Lodge 508 acts as the dues collection agency for all local lodges within its jurisdiction. As president and directing busi- ness representative of District Lodge 508, Kenneth Benda has direct responsibility for enforcing the collective- bargaining agreement between the Respondent and Lockheed. He is as- sisted in this respect by Oscar Easton, secretary-treasurer of Respondent, three business representatives elected by the membership at large, and a clerical staff of five. Respondent's monthly dues are $7.10, payable on the first day of each month. Delinquency but not expulsion results from the failure of an individual to timely pay monthly dues. However, article I, section 15 of the constitution of the Inter- national Association of Machinists and Aerospace Workers provides as follows: Delinquency for 3 months in the payment of dues or special levies, or delinquency arising from application of Sec. 4, Art. C, shall automatically cancel membership and all rights, privileges and benefits incident thereto. The period of good-standing membership of members whose membership has been cancelled for delinquency or other cause shall date from their last reinstatement, as shown by the G.L. records, and their rights, privileges and benefits under the provisions of this Constitution shall attach and date from their last reinstatement, as though they had never before held membership in the I.A.M. Oscar Easton, secretary-treasurer of Respondent, testified credibly that under section 15 of article I of the constitution the membership of an individual whose dues remain unpaid at midnight on the final day of the third month automatically lapses. Easton credibly testified that in order to obviate lapsed memberships, his office, on or about the fifteenth day of the third month of dues delinquency, initiates a form letter of delinquency which is sent to each member of the Union whose membership is in jeopardy by reason of non-payment of dues. As part of the same procedure, a confirming notifica- tion is also sent by the Union to the employing company. This latter notice informs the employer of the dues status of the employee. Article I, section 16 of the Union's constitution provides as follows: Any person whose membership has been cancelled may be reinstated to membership, but the application for reinstatement must be made to the [local lodge] under whose jurisdiction the applicant is working, and the regular reinstatement fee of such [local lodge] must be paid. If the application for reinstatement is filed in the [local lodge] wherein the applicant's original membership was cancelled and the application is approved, said [local lodge] shall immediately issue a due book containing a reinstatement stamp properly cancelled, which transac- tion shall be entered on the monthly report of said [local lodge] in the same manner as initiations are entered. c. The Union's June 17 reminder On June 17, in furtherance of routine policy, Easton caused to be mailed to Katen a letter of reminder concerning the status of his membership dues. The letter quoted from the constitution of the Union as follows: Delinquency for 3 months in the payment of dues or special levies shall automatically cancel membership and all rights, privileges and benefits incident thereto. The letter also called the attention of Katen to the fact that the records of the Respondent revealed that his dues would become 3 months delinquent on the last day of the month and that his membership would "lapse into bad standing" unless Katen paid his dues before that date. The letter, in substance, recounted that membership in the Union was necessary as a condition of employment in the Lockheed plant and detailed the methods by which Katen could accomplish the payment of dues. The letter also contained the following paragraph which was set out in boldfaced type. THIS WILL BE THE ONLY NOTICE YOU WILL RECEIVE SO WE URGE YOUR IMMEDIATE AT- TENTION TO THIS MATTER AS I WILL BE RE- QUIRED TO NOTIFY THE SENIOR BUSINESS REPRESENTATIVE FOR NOTIFICATION TO THE COMPANY ON THE FIRST DAY OF THE MONTH AFTER YOUR MEMBERSHIP LAPSES. The letter bore the signature of Oscar Easton. Additionally, on June 17, Easton dispatched to the Com- pany a letter containing the names of 17 employees including the name of Leroy Katen. In pertinent part the letter con- tained the following paragraph: The following member-employees will be three (3) months delinquent on June 30, 1970, and are in jeopardy of lapsing their membership for non-payment of dues if payment has not been received by June 30, 1970. They were sent delinquent notices on June 17, 1970. MISSILE & ELECTRONIC DIST. LODGE 508 d. The interoffice followup On June 24, according to normal established routine, Eas- ton initiated an interoffice memorandum to Benda listing Katen and five other individuals who had not responded to the Union's delinquency notice mailed to them on June 17. The memorandum recited the fact that the membership of the listed individuals would lapse for nonpayment of dues on June 30. Benda's "immediate attention" to the matter was invited. Thereafter, on the morning of July 1, Easton informed Benda orally that Katen's membership had lapsed for non- payment of dues as of June 30. 2. The alleged unlawful conduct a. Katen's tender of dues On June 25, Leroy Katen wrote a check in the amount of $28.40 to cover his dues obligation for the months of April, May, June, and July 1970. He then placed the check in an envelope with his dues payment book and, in turn , placed the sealed envelope on the mailbox outside of his home. There- after, on June 25 , prior to the time Katen left his residence to report to his 4 p.m shift, Marie Katen, the wife of Leroy Katen, in extracting the day's mail from the mailbox at the Katen residence , found an envelope addressed to the Re- spondent. Thereupon Marie Katen gave the envelope to her husband Before leaving for work that afternoon, Leroy Katen placed the envelope in his shirt pocket. Katen did not specifically recall mailing the envelope con- taining his June 25 check. However, he testified , in substance, that it was his practice when placing material for mailing in his pocket, to extract it from his pocket along with his I D. card as he approached the gate of the plant to gain entry. It was then his practice to deposit any mail thus extracted from his pocket in the mailbox next to the entry gate to the plant. b. The events of July 1 (1) Katen calls the Union During the shift hours of Tuesday, June 30, Leroy Katen was informed by his supervisor that the Company had re- ceived a notice that Katen 's dues had not been paid. Katen informed the supervisor that he had sent the check to the Union the prior week. The supervisor answered that perhaps "the check had been slow getting through." Thereafter, before noon on July 1, Leroy Katen called the office of the Union and spoke to Jean Gordy, a clerk in the Sunnyvale district office of the Union, and a subordinate of Oscar Easton. Katen inquired if Miss Gordy had received his dues check. Gordy answered that she did not know but that she would consult the files. She did so and then informed Katen that she could not find the check. Katen summarized for Miss Gordy his efforts to transmit his dues payment by mail. Miss Gordy instructed him to speak with Easton. She informed Katen that Easton was not in the office but that she would leave a message for him to call Katen. Easton did so during the early afternoon of July 1.1 ' The testimony of Leroy Katen and Jean Gordy establishes the fact of a telephone conversation between them and the general subject matter of the conversation The testimony of each was deficient in that it was conclu- sionary in nature Moreover, that of Jean Gordy , to a significant extent, was elicited through leading questions However , the testimony of record is sufficient to establish the substance of the conversation I conclude from the testimony of Leroy Katen that during the conversation he alluded in some manner to his efforts to pay his dues by check sent through the mail How detailed was his description of these efforts may not be gleaned from his testimony of record, and Jean Gordy did not refer to this facet of the 63 (2) Katen meets with Easton Oscar Easton returned Katen 's telephone call during the early afternoon of July 1. Katen informed Easton that he had sent his dues payment in to the Union by check and he asked Easton if his check had been received. Easton requested Katen to wait while he spoke with the office girls After doing so Easton informed Katen that his check had not been re- ceived Katen responded that he had mailed the check on June 25 and that it should have been received . Easton sug- gested that Katen come to the office to speak with him further concerning the matter . Katen went to the office of the Union at approximately 2 p.m. on July 1.' Upon arriving at the office of the Union, Katen approached the window in the reception area of the office and spoke to one of the office girls. He identified himself and asked to speak with Easton . The girl summoned Easton . Katen commenced his conversation with Easton by identifying himself and by stating in summary fashion the purpose of his visit. Katen informed Easton that he had mailed his dues check and Eas- ton responded that the check had not arrived. Easton further stated that he had no record of the check having been re- ceived in the office Katen then asked if he could pay his union dues "now". Easton stated that this was unacceptable in that his membership had lapsed on June 30. Easton further stated, by way of explanation, that the books had been closed and that under the Union's rules it was not open to his discretion to, in effect, reopen the books and accept the back payment of dues. In response thereto, Katen asked if he could pay a fine or a reinstatement fee in addition to his dues. Easton answered that he did not think this was possible and that it was contrary to the rules of the Union. However, Easton suggested that together they speak with Kenneth Benda, president of District 508.° After a brief delay, Kenneth Benda was summoned from a meeting which he was attending at the offices of the Union. In the interim before Benda joined Katen and Easton , Easton suggested that it might be possible for Katen to write to the national president of the Union and detail the situation. Eas- ton stated that, in such event, the president would rule on the matter. Thereafter, according to the outline of procedure suggested by Easton, if the president's recommendation was favorable to Katen, the delegate body of the Union would meet and would pass upon the reinstatement issue. Moreover, Easton stated that, in any event, the Union would defer send- ing the normal termination letter to the Company until after receipt of the morning mail on the following day, July 2. conversation in her testimony For reasons hereinafter delineated, I conclude upon the testimony of Leroy Katen, Marie Katen, Barbara Peercy , and Father Philip Oliger that the events herein described as occurring on July 1 occurred on that day and not on July 2 as Respondent contends ' The foregoing is predicated upon a composite of the testimony of Leroy Katen and Oscar Easton The foregoing is based principally upon the credited testimony of Leroy Katen I have also considered the testimony of Oscar Easton and credit it to the extent that it is compatible with that of Katen Easton's testimony concerning this conversation was terse and abbreviated in form but it was not contrary to the salient aspects of Katen 's testimony Upon an evaluation of the testimony of Katen and Easton concerning this conversation, I specifi- cally credit Katen to the effect that he offered to pay both a penalty and/or a reinstatement fee I thus do not credit the testimony of Easton to the effect that Katen made no offer, during this conversation, to pay a reinstatement fee 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Katen and Benda confer In due course, Benda joined Easton and Katen and the three conversed in a hallway near Benda's office. In summon- ing Benda from the meeting in which Benda was engaged, Easton had requested Benda to speak with him concerning the question of a lapse in membership due to the nontender of dues. When Benda joined Easton and Katen in the hall- way, Easton identified Katen by name and noted that Katen was the member who had lapsed his membership. In sub- stance, Easton noted that efforts had been initiated to effectu- ate Katen's termination from his employment and stated that Katen wanted to know if there was anything to be done to stop his termination, Katen stated that he had mailed his dues payment check and Benda asked Easton if the check had been received. Easton stated that it had not been received and observed that the books had been closed at the end of June. Benda then informed Katen that under the rules of the Union nothing could be done at this point in time. Thereupon, Katen asked what would happen as a consequence. Benda stated that action had been initiated to bring about Katen's termination and that, consequently, the next step would be up to the Company. At this point, Katen asked if there was not something he could do to prevent this occurrence. In con- junction with this inquiry, Katen offered to pay his dues and a fine or a reinstatement fee. To underscore this intention, Katen withdrew his checkbook from his pocket and offered to write a check. He further offered to show Benda and Easton the entry which he had made in his checkbook record- ing the June 25 check written in payment of his dues. But Katen stated, in connection with this proffer, that he was not certain whether the check had actually been mailed. He dis- closed to Benda and Katen the fact that his wife had found the envelope containing the check in the mailbox at their residence after he, Katen, had posted it. Thereupon Benda stated, in substance, that any effort to assist Katen would constitute a deviation from the policies of the Union which he did not wish to unilaterally undertake. Consequently, Benda suggested a meeting of his staff to discuss the matter.' (4) Staff consideration of Katen's plight In due course, after efforts to assemble the staff, Benda met with Katen, Easton and with Frank McKee and Ralph Wil- cox, business representatives. When the group had assem- bled, Benda took the initiative in explaining to the two staff representatives the events surrounding Katen's efforts to mail his dues check, and the occurrences which casted doubt upon whether the check had been misplaced or mailed. Benda also informed the staff members that Katen had offered to pay his dues or reinstatement fee, or to make whatever payment was necessary to prevent his termination. Benda stated that efforts to effectuate Katen's termination had been initiated but that he had 9 years' seniority and requested the reaction of the staff members. McKee and Wilcox, the staff representatives, both stated that they knew of no provision under the Union's procedures which would permit the payment of dues after the last day of the month in which membership would lapse. Katen interjected with the observation that the check had been lost or that its whereabouts was uncertain. However, he was informed that there was nothing that could be done about it. The meeting terminated with a manifestation of unanimity among the union representatives, including Benda and Eas- ton, that under the Union's rules and procedures there was no recourse open to them. However, Benda gave Katen his ' Kenneth Benda testified that he was motivated in calling the staff meet- ing by the fact that Katen "seemed to be sincere in saying he had mailed his check to us." personal assurances that if the check should come in later postmarked in the month of June, he would, on Katen's behalf, appear before the delegate body and request restora- tion of Katen's seniority. Further, Benda informed Katen that he would also request the Company to-reinstate him.' (5) Marie Katen seeks legal advice At approximately 4:15 p.m., on July 1, Marie Katen con- tacted Father Philip Oliger at the University of Santa Clara. She informed Father Oliger that her husband had tendered his dues to the Union and that the Union had refused to accept them. She also told Father Oliger that as a conse- quence her husband was in jeopardy of being terminated from his employment. Father Oliger stated that he would obtain the services of an attorney with competence in the labor relations field. He then made the necessary arrangements for an appointment and called Mrs. Katen, instructing her to contact the office of the attorney.' (6) The involvement of Barbara Peercy On the morning of July 1, Marie Katen had informed her neighbor, Barbara Peercy, of her concern, and that of her husband, over whether an envelope containing her husband's dues had been mailed. Thereafter, at approximately 1:30 p.m., on July 1, as Barbara Peercy was entering the front door of the Katen residence, she met Leroy Katen leaving the house. Peercy asked Marie Katen what was wrong and why Leroy Katen was leaving in such "a big rush". Marie Katen stated that her husband had to "get down to the Union to straighten out a mess." Thereafter, at approximately 4:30 p.m., on the afternoon of July 1, Peercy called the Katen residence and was informed by Marie Katen that her husband had offered to pay his dues and that the offer had been refused. On the afternoon of July 2, Barbara Peercy spoke with Leroy Katen and inquired how he had fared with the Union. Katen stated that he had offered to pay his dues and that the Union had refused to accept them.' All of the foregoing is based upon a composite of the testimony of Leroy Katen, Kenneth Benda, and Oscar Easton. While the testimony of Benda is the most descriptive of the events which transpired both preceding and during the meeting with his staff members, I am unable to credit Benda's testimony to the effect that it was not until the actual meeting with the two staff representatives that Katen offered to pay his dues, a fine, or a reinstate- ment fee. Katen's testimony is convincingly to the contrary and gains sup- port from the testimony of Easton. Further, based upon Katen's testimony, and an analysis of the events which transpired at the meeting with the two staff representatives as described by Benda himself, I am convinced, con- trary to the testimony of Benda, that there was a discussion between Benda, Easton, and Katen prior to the meeting with the staff representatives, con- cerning the possibility of waiving the normal intraunion procedures if it were found that the dues payment check had, in fact, been timely mailed. Accord- ingly, contrary to the inferences to be drawn from Benda's testimony, I do not find that the sole purpose of the meeting with the staff representatives was to determine whether or not deviations could be made from the normal union procedures of demanding termination of employee-members who had permitted their dues to lapse. ' The foregoing is established by the testimony of Father Philip Oliger and Marie Karen, which I credit. ' The foregoing is based on the testimony of Barbara Peercy as supported in essential aspects by that of Leroy Katen and Marie Katen. MISSILE & ELECTRONIC DIST LODGE 508 c. The events of July 2 (1) The Union demands Katen 's termination On July 2, a letter bearing the signature of Kenneth Benda, was received by the Company. The letter , which bore a July 2 date, was timestamped revealing its receipt in the Labor Relations Department of the Company at 10.30 a.m. In ac- cordance with normal practice, the letter had been hand- delivered from the office of Benda to the Labor Relations Office of the Company, located some three miles away. The letter, which was addressed to Richard T. Davis, Manager of Labor Relations, read as follows: This is to inform you that the following employee has become more than three (3) months delinquent in the payment of his Union membership dues, and has there- fore not maintained his Union membership in good standing as required by the Constitution and By-Laws of the I.A.M & A.W. : L. A Katen Employee #642753 Therefore, in accordance with Article I, Section 7, of the Union-Company Agreement , the Union finds it neces- sary to request the Company to terminate the employ- ment of the above named employee. The foregoing letter was initiated by Kenneth Benda as a consequence of a separate letter from Oscar Easton which Benda found on his desk on the morning of July 2 when he arrived at his office . The letter from Easton, in substance, notified Benda of the membership lapse of Leroy Katen as a result of Katen's failure to pay his dues on or before June 30. The letter contained the following: Your immediate attention is requested as this member is subject to termination under the Maintenance of Mem- bership clause of the Union-Company Agreement. This shall serve notice of his non-membership. Upon reading the letter from Easton , Benda handed it to his secretary with instructions to prepare a letter to the Com- pany requesting Katen's termination for dues delinquency.' (2) Mane Katen calls Easton At approximately midday on July 2, Marie Katen placed a telephone call to the office of Oscar Easton. She spoke with a secretary in Easton's office. Marie Katen inquired if her husband's dues check had been received. The secretary ex- cused herself and upon returning to the telephone informed Mrs. Katen that the check had not arrived Marie Katen left a message with the secretary for Easton to contact her. Eas- ton did so later in the afternoon.10 Upon speaking with Eas- ton, Marie Katen inquired why he had not accepted her husband's "money" the day before. Easton answered that he could not accept it because the books had been closed at the end of the month. Easton stated that for him to have done so would have been against the Union's rules and would have jeopardized his own job with the Union. Easton informed Mrs. Katen that the matter had been discussed with the president of the Union and with other union officials and that all had agreed that it was against the Union's rules to accept the money Marie Katen insisted that the offer of money had been made on the first of the month and insisted that the money should have been accepted because "the Union was there to help the people". Easton responded that when Katen ° Benda testified that his secretary routinely prepares this type of letter from a form letter and that the Katen letter was merely an adaptation of the form letter '° Marie Katen testified that at approximately 2 30 she was at her bank for the purpose of stopping payment on the check She testified that Easton called before she went to the bank 65 had proffered the money the day before, the books already had been closed and had been closed since the prior day." (3) Marie Katen contacts NLRB After speaking to Easton's secretary, but prior to Easton's return call, Marie Katen contacted a San Jose attorney to whom she had been referred by Father Oliger. The attorney advised her to call the National Labor Relations Board. Consequently Marie Katen dialed the telephone number of the San Francisco Regional Office of the Board Leroy Katen took the telephone and requested to speak to the Assistant Regional Director She was out to lunch but subsequently returned Katen's telephone call. Thereafter, during the after- noon of July 2, Shirley Bingham of the Regional Office con- tacted John Foote, Grand Lodge Representative of the Un- ion, at the Sunnyvale offices of District 508. This conversation by telephone transpired at approximately 4 p.m. Shirley Bing- ham discussed with Foote the policy and procedures of the Union in effecting termination of members at Lockheed for non-payment of dues. Foote outlined the policy and the con- versation ended. (4) Marie Katen calls the Company Marie Katen testified that at approximately 4.45 p.m, on the afternoon of July 2, pursuant to a suggestion of her attor- ney, she placed a telephone call to the offices of the Company in an endeavor to obtain the name of the appropriate official of the Company to whom her attorney could direct a letter concerning the impending termination of Leroy Katen The secretary to whom Mrs. Katen spoke transferred her call to an individual whom Mane Katen believed to be John Foote, Grand Lodge Representative of the Union. She spoke with this individual and was referred by him to another person who was a representative of the Company After speaking with this latter person, she spoke to Joseph Risser.12 (5) Respondent confirms discharge demand In the meantime, on the afternoon of July 2, Kenneth Benda spoke with Joseph Risser, Labor Relations Adminis- trator for the Company. The conversation transpired on the premises of the Company. With the Union's July 2 letter in hand, Risser approached Benda and said, "I have your letter here on the Katen matter, is this for real?" Benda answered in the affirmative. In substance, Benda informed Risser that Katen had originally stated that he had mailed his dues but that later Katen's wife had indicated to Katen that the en- velope containing the dues payment had not been mailed. " The foregoing is based upon a consideration of the testimony of Marie Katen and that of Oscar Easton I credit the testimony of Easton only to the extent that it is consistent with the foregoing findings " The foregoing is based on the testimony of Marie Katen I conclude from the testimony of Mrs Katen that she did, in fact, place a telephone call to the company offices on the afternoon of July 2 However, upon a consid- eration of the testimony of John Foote denying that he engaged in any conversation with Marie Katen in the circumstances detailed by Mrs Katen in her testimony, I find that Mrs Katen was mistaken in her belief that she was speaking to John Foote on this occasion The evidence of record con- vincingly establishes that during the 2 day period of July 1 and 2, Marie Katen was busily engaged in endeavoring to save her husband's job More- over, the telephone call to the company offices came in close time proximity to the conversation which Marie Katen had on the afternoon of July 2 with the Assistant Regional Director of the Board I am convinced that as a result of the emotional impact of the series of conversations and endeavors which Mrs Katen undertook on the afternoon of July 2 to ward off her husband's impending termination, she became confused concerning the identity of the individuals with whom she spoke at the company office on the afternoon of July 2 Consequently, I am further convinced that she spoke to an individual other than John Foote when she called the Company 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benda informed Risser that, in any event, the dues payment had not been received by the Union and that the Union was therefore requesting Katen's termination. (6) The termination On Monday, July 6, the Company terminated Leroy Katen. Company offices were closed on July 3, 4, and 5 in observance of the July 4 weekend. Conclusions a. The chronology of events Initially, I conclude and find that the meeting between Easton, Benda, and Leroy Katen at the office of the Union transpired on July 1 and not on July 2, as both Easton and Benda testified, and as Respondent contends. I make the finding based upon a careful consideration of the testimony of Leroy and Marie Katen, Father Philip Oliger, and Barbara Peercy, as well as upon a consideration of the countervailing testimony of Oscar Easton, Kenneth Benda, Jean Gordy, and John Foote. The testimony of record establishes an exchange of confi- dences between Marie Katen and her neighbor, Barbara Peercy, of a variety and content sufficient to establish the occurrence of events giving rise to apprehension on the part of Marie Katen over the continued security of her husband's job. The disclosures which Marie Katen made to Barbara Peercy as the series of events unfolded were of a nature un- likely to be fabricated in advance by Mrs. Katen who, so the record suggests, was unfamiliar with the legal niceties of the demand and union-security discharge procedures. The inde- pendent events to which both Marie Katen and Barbara Peercy related the chronology of the disclosures of Marie Katen to Barbara Peercy give credence to the time sequence which they individually outlined in their testimony. More- over, as I view the record, it is definitively established that Marie Katen contacted Father Oliger on the late afternoon of July 1. The substance of her conversation with him was such as to render most likely the prior occurrence of the Easton-Benda-Katen conference. The conference did not take place on June 30. Mainfestly it occurred on the afternoon of July 1. Other evidence reinforces this conviction. It is apparent that the efforts which Marie Katen undertook on July 2, starting at midday to save her husband from termination, were predicated upon information earlier communicated to her husband by officials of the Union. Thus, her mid-morning telephone call to the Union to learn if the dues check had been received, her deferral of actual contact with an attorney until after receipt of a negative answer concerning receipt of the dues check, her call to the National Labor Relations Board, and the reference in her telephone conversation with Oscar Easton on the early afternoon of July 2 to Easton's refusal the day previous to accept Leroy Katen's dues proffer, all strongly support the conclusion that the meeting between Leroy Katen, Oscar Easton, and Kenneth Benda wherein Katen tendered his dues and initiation fee transpired on July 1 and not on July 2. I am reinforced in my finding that the meeting between Easton, Benda, and Katen transpired on July 1 by the failure of the Union to document by journal entry the testimony of John Foote which placed him at the union hall on July 2 in a vantage point from which he observed the gathering for the meeting in question. Foote's crowded schedule renders falli- ble his reliance upon mere memory for recall of an event which, when first observed, was without signal significance. Moreover, this same demand upon his time lessens the likeli- hood that the pendency of his vacation was a reliable nexus to which he could relate his presence at the union hall on July 2. No witness called by the Respondent could tie the chronology of events convincingly to an independent occur- rence. The testimony of Jean Gordy has been considered which suggests that Leroy Katen's initial contact with the Union was subsequent to the preparation of the July 2 letter to the Company demanding Katen's termination. However, upon the total context of this record, it is entirely plausible that Gordy was incorrect and that her recollection related to the July 2 telephone call of Mrs. Katen and not to the July 1 contact by Leroy Katen. I find, as a consequence of the foregoing, that the meeting between Easton, Benda, and Leroy Katen occurred on the afternoon of July 1. I find that the reference made by Benda at that meeting to the fact that implementing actions had already been taken with respect to Katen's termination, was based upon and related to the informal conversation which Benda had already had with Easton on the morning of July 1, concerning Katen's lapsed membership. I further find that, in fact, no written intraunion communication between Easton and Benda had been formulated at the time of the meeting and that no written demand had been served upon the Com- pany when Easton, Benda, and Katen met. b. The merits With respect to the merits of the complaint, the General Counsel contends that, upon an application of the principles enunciated by the Board in General Motors Corporation, 134 NLRB 1107, an employee who belatedly tenders his dues to his union under a valid maintenance of membership clause before the union requests the employee's discharge has made a proper tender, and a discharge based upon a subsequent request is unlawful. The culpability in such a situation, con- tends the General Counsel, is grounded on the fact that the union must be causing or attempting to cause the employee's discharge for reasons other than the employee's failure to tender the periodic dues and initiation fees uniformly re- quired as a condition of acquiring or retaining membership. On the other hand, the Respondent distinguishes the in- stant case from the General Motors precedent on grounds that in General Motors a mere dues delinquency was involved in the belated tender issue, whereas in the case at bar, Katen's belated tender of dues was made after his membership in the Union had been terminated by operation of the mandatory provisions of the Union's constitution. Additionally, con- tends Respondent, the orderly and equitable administration of valid union-security arrangements which the Act fosters, and which concededly exists under the collective-bargaining agreement between the Union and the Company, would be undermined and frustrated by an application of law which would render union requests for discharge of defaulted mem- bers defeasible by the well timed, last minute dues proffer of a cunning or capricious employee. The facts of this case raise directly the question whether the rationale of the Board's decision in General Motors requires abandonment of the facet of the Aluminum Workers prece- dent" not specifically overruled by the Board in General Mo- tors, in favor of the antecedent rule of the Chisholm-Ryder case." In General Motors, the Board dismissed the complaint al- leging violations of Section 8(b)(1)(A) and (2) arising from a union request that the company discharge an employee pur- suant to a valid union-security agreement between the union " Aluminum Workers International Union, Local No. 135 (The Metal Ware Corporation), 112 NLRB 619; see also the Board's earlier decision in the same proceeding at 111 NLRB 411. 14 Chisholm-Ryder Company, 94 NLRB 508. MISSILE & ELECTRONIC DIST LODGE 508 and the company. The union's request came at a time when and solely because the employee was delinquent in the pay- ment of his dues. In dismissing the complaint, the Board articulated the following rationale: As reflected in the statutory language, [Sections 8(a)(3) and 8(b)(2)] the question to be determined is the reason underlying the discharge. As we have found, Bu- sefink [the employee-member] was delinquent in the pay- ment of his dues at the time the Union requested his discharge and the request was made solely because of such delinquency; if the Company had discharged Bu- sefink immediately upon receipt of the Union's request, the legality of both the request and the discharge could not have been questioned. In these circumstances, to find that Busefink's offer of payment, subsequent to the re- quest for his discharge but prior to his actual discharge, was sufficient to convert lawful action into unlawful ac- tion would mean that, despite the absence of any other evidence of unlawful purpose, an inference is to be drawn that the Union refused to accept his offer and continued to seek his discharge for some undisclosed reason other than his prior delinquency and that the Company had reasonable grounds for believing that such was the case. We do not believe that the fact of a tender belatedly made after a lawful request for dis- charge is sufficient standing alone to warrant such an inference. We believe, moreover, that the application of the Aluminum Workers rule is at odds with the congres- sional purpose of allowing parties to collective-bargain- ing relationships to enter into and effectively enforce union-shop agreements requiring membership in the un- ion as a condition of employment. For, as illustrated by the circumstances of this case, there can be little if any union security if dissident members can frustrate the orderly administration of lawful collective-bargaining agreements by delaying payment of dues and fees they are lawfully obligated to pay until the last minute before their actual discharge. We shall therefore no longer apply the Aluminum Workers rule when the tender occurs after a lawful request, but shall in all such cases look to the record to determine the real reason for the parties'subse- quent conduct [Footnote citation deleted and emphasis supplied ] In Aluminum Workers, the Board was faced with the task of determining the legality of a termination accomplished pursuant to two separate union demands, the first of which was made prior and the second subsequent in time to a full tender of the required back and current dues Stressing its finding that the full tender was antecedent both to the union's demand and the company's discharge action, the Board found a violation of Section 8(b)(1)(A) and (2) of the Act with respect to the first demand. The Board reached a similar conclusion with respect to the second demand. In so finding the Board reasoned as follows- The Trial Examiner, relying upon an earlier Board decision, in effect found that a belated tender does not forestall a valid discharge. However, we hold that a full and unqualified tender made anytime prior to actual discharge, and without regard as to when the request for discharge may have been made, is a proper tender and a subsequent discharge based upon the request is unlaw- ful. Accordingly, . . we hold without merit the fact that the Respondent had requested the discharge on October 27, and find that the complainant, in making the max- imum tender demanded by the Union before her actual discharge, was protected against discharge based on the Respondent's request. [Footnote citations deleted.] 67 In reaching the foregoing decision the Board specifically overruled the Chisholm-Ryder case to the extent that that decision was inconsistent with the Aluminum Workers deci- sion. The Board in Chisholm-Ryder had dismissed the com- plaint alleging violations of Section 8(b)(1)(A) and (2) of the Act deriving from the termination of an employee pursuant to a union demand made at a time when the employee had been expelled from the union because of dues delinquency. Subsequent to the union's demand, but prior to the com- pany's discharge action, the employee in Chisholm-Ryder made a full tender of dues The Board rejected the General Counsel's argument that the Act prohibited the termination question because the employee had tendered his delinquent dues to the union prior to his termination. In so ruling the Board stated the following: It is clear that to entitle an employee to protection under these provisions [Sections 8(a)(3) and 8(b)(2)] where, as here, the union is not otherwise improperly motivated in seeking his discharge, the employee is obli- gated to tender "the periodic dues ... uniformly re- quired as a condition of... retaining membership." The quoted phrase plainly contemplates not only that the ten- der be in an amount uniformly prescribed by the union, but also that it be made within the time uniformly allowed by the union as a condition of retaining membership. [Emphasis supplied in part.] * * * * In the present case, [the employee] failed to perform his statutory obligation to tender his periodic dues within the time uniformly required as a condition of retaining his membership. As a consequence, he became vulnerable to discharge under the Respondents' union- shop agreement, upon his expulsion from the Union. As the Union's constitution and bylaws did not provide for the restoration of membership rights or prevent expul- sion on payment of delinquent dues, [the employee's] unaccepted belated tender could not bar his discharge This conclusion is in harmony with the well-established legal principle that a tender to be effectual must be made within the time fixed by law or contract, as the case may be. [Footnote citations deleted ] It is, of course, for the Board and not a Trial Examiner of the Board to declare Board policy. It is my view, upon an analysis of the foregoing precedents, that the General Motors decision did not undertake to modify directly the element of the Aluminum Workers decision, holding unlawful union- caused terminations effectuated pursuant to union demands made subsequent in time to the full tender of dues and fees 15 Accordingly, I find that Aluminum Workers retains its prece- dential effect when applied to demands made subsequent to the full tender of dues. Thus, for Respondent to prevail it would be necessary for me to disregard the Aluminum Work- ers precedent and to restore, in effect or substance, the Chi- sholm-Ryder precedent. This would be equivalent to finding that without regard to the sequence of tender and demand, in order to be insulated from discharge under a valid union- security arrangement an employee must tender his dues within the time uniformly allowed by the union as a condition for retaining membership Such a proposition was, of course, rejected by the Board in Aluminum Workers and there is nothing in the General Motors decision tacitly declaring the " Member Brown, in joining the four member majority in General Mo- tors, declared that he did not view the General Motors decision as "deter- mining whether the validity of the discharge action is contingent upon a specific request for discharge before a belated tender is made " 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent of the rule of the Chisholm-Ryder case to be the present, declared policy of the Board. Specifically, I find, therefore, upon the basis of the Aluminum Workers prece- dent, and for the reasons articulated, that when full tender precedes the union's demand, a termination flowing from the union's demand results in a violation of Section 8(b)(1)(A) and (2) of the Act. In my view, this decision may stand independent of any consideration of the contention raised by Respondent with respect to the "free-rider" connotation of a decision adverse to it herein. However, it is cogent to observe that Respondent overstresses the practical effect of the instant decision finding a violation under the facts of record. Thus, contrary to Re- spondent's contention, Katen did not endeavor by defaulting in his dues to escape his dues obligation through the device of a postexpulsion tender of current dues and uniform rein- statement fees. Katen's tender made prior to the Union's de- mand for his termination was of current and back dues as well as a reinstatement fee. In effect, he was requesting the Union to stay its hand against affecting his job tenure while proceed- ing as its officers would discern to be proper, both in terms of union procedures and time sequence, to effectuate his rein- statement into membership. For Respondent to have accom- modated Katen, in the manner described, would, to be cer- tain, have created an inconvenience. But nothing by way of substance, beyond inconvenience, would have resulted to frustrate or undermine in a significant degree the orderly administration of a union-security arrangement with the Company. The stratagems of a deceitful or frugal member would have found no assist in such a precedent. Whatever the rights of a union in a circumstance wherein an employee would seek to circumvent his dues obligation by tender of only a reinstatement fee, and whatever the reach and applica- bility of the proviso to Section 8(b)(1)(A) in such a circum- stance, it is apparent upon the record before me that Katen's request posed no substantive threat to the validity of Respon- dent's policy governing retention of membership in the Un- ion. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully attempted to cause, and did cause, the Company to terminate Leroy Katen from his position of employment with the Company, I shall order the Respondent to make Leroy Katen whole for any loss of pay he may have suffered as a result of the Respon- dent's unlawful conduct, by paying to him a sum of money equal to the amount he would have normally earned from July 6, 1970, the date of the discrimination against him, to the date of his reinstatement by the Company, less his net earn- ings during the period." Backpay shall be computed with " The record reveals that Leroy Katen was reinstated to his former position of employment by the Company subsequent to July 6. interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Lockheed Missiles and Space Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Missile & Electronic District Lodge No. 508, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, and its Local Lodge No. 2228, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause Lockheed Missiles and Space Company to terminate Leroy Katen, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By restraining and coercing employees of the Company in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" Respondent, Missile & Electronic District Lodge No. 508, International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local Lodge No. 2228, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Lockheed Missiles and Space Company to discriminate against its employees in vio- lation of Section 8(a)(3) of the Act. (b) Restraining or coercing the employees of Lockheed Missiles and Space Company in the exercise of any right guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Make whole Leroy Katen for any loss of earnings suff- ered by reason of the discrimination against him, on and after July 6 until the date of his reinstatement by Lockheed Mis- siles and Space Company, in the manner set forth in the section entitled "The Remedy." (b) Post in their offices and meeting halls, copies of the attached notice marked "Appendix."" Copies of such notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the authorized representatives of Respondent, be posted immediately upon receipt thereof, and be maintained by Respondent for a period of 60 consecutive " In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. " In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." MISSILE & ELECTRONIC DIST LODGE 508 days thereafter in conspicuous places, including all places where notices to members are customarily posted Reasona- ble steps shall be taken by Respondent to insure that said notices are not altered , defaced or covered by any other material (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 20, for posting by Lockheed Missiles and Space Company, if the Company is willing, at all places where notices to the Company's employees are customarily posted (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.19 " In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director , in writing, within 20 days from the date of this order, what steps Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Lockheed Missiles and Space Company to discriminate against em- ployees in regard to their hire or tenure of employment, or any term or condition of employment , in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT restrain or coerce employees of Lock- heed Missiles and Space Company in the exercise of any 69 right guaranteed under Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL make whole Leroy Katen for any loss of earnings suffered as a consequence of his termination by the Company at our demand , on July 6, 1970. Dated By MISSILE & ELECTRONIC DISTRICT LODGE No. 508, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO , AND ITS LOCAL LODGE No. 2228 (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by any- one. 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco , California 94102, Telephone 415-556-3197