FMC Corp.

FMC CORPORATION 639 FMC Corporation, Link-Belt Chain and Conveyor Components Division and John V. Warrenburg. Local Union No. 1150, United Steelworkers of America, AFL-CIO-CLC and John V. Warren- burg. Cases 25-CA-5312 and 25-CB-1618 November 29, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 27, 1973, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, the General Counsel, Charg- ing Party, and Respondent Employer filed excep- tions and supporting briefs and Respondent Union filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 We agree with the Administrative Law Judge that, in the total circumstances of this case, it has not been shown that Respondent Union violated Sec. 8(b)(2), or that Respondent Employer violated Sec. 8(a)(3). Employee Warrenburg was suspended on a Saturday by the Employer, at the Union's request, for nonpayment of periodic dues. Warrenburg's wife had appeared at the union hall at the close of business the day before, the last day specified by the, Umon, but, because of a misunderstanding, did not pay her husband's dues As the Administrative Law Judge found, Mrs. Warrenburg, finding the lights off in the teller's cage, went to the back of the hall and knocked on the door of the Union's conference hall where a meeting was in progress Mrs. Warrenburg informed the man who opened the door she was there to pay union dues and repeated the statement when the man asked her to do so. The Umon's President, Stammer, aware of her presence but, as a result of being preoccupied with other business, not having heard what Mrs. Warrenburg had said, asked, "Yes9" Mrs. Warrenburg replied asking, "Is the secretary here?" Stammer informed Mrs. Warrenburg that the secretary had gone for the day. Mrs. Warrenburg left without ever identifying herself and without making any further reference to her purpose for being there. Warrenburg was able to straighten out the matter over the weekend and the Umon released him to go back to work the following Monday. We do not believe that this series of misunderstandings, quickly cleared up, amounts to a violation of the Act by the Union. Since we find the Union did not violate Sec. 8(b)(2), it follows that the Employer did not violate Sec. 8(aX3) by acceding to the Union's request. We find it unnecessary to pass on any of the alternative rationales set forth by the Administrative Law Judge, but adopt the Administrative Law Judge's finding and rationale with respect to the alleged threat by Stammer. DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge : Charging Party John V. Warrenburg, who refuses to authorize union dues checkoffs from his wages, is a chronically delinquent dues paying member of the Respondent Union. On December 1, 1972, when he was 5 months in arrears on his union dues and subject to expulsion from the Union and to discharge by the Respondent Employer under their collective-bargaining agreement if his dues were not paid up that day, Warrenburg sent his wife to the Union's office just minutes before its closing time at 5 p.m., to pay his dues. Although Mrs. Warrenburg did in fact call at the union offices for that purpose, there is a serious question under the circumstances detailed below as to whether she made a valid tender of her husband's delinquent dues to the union officials then in executive session as she did not identify herself to the officials or state for whom she wanted to pay union dues and in fact left the union offices without leaving payment for her husband's back dues. When Warrenburg reported for work next day, a Saturday, at 7 a.m., his foreman declined to allow him to check in pursuant to an earlier written notice that this would be the consequence of his failure to pay his back union dues by December 1, 1972. That same Saturday Warrenburg went to the home of the Local's financial secretary, William T. Bowers, to pay his unio i dues and in his absence, pressed the money for his dues into the hands of Bower's wife. On Monday at about 1 p.m., Warrenburg called his Employer to find out if the Union had released him to report to work. He was told that he ,had been released as of 9 o'clock that morning but chose not to start work until Tuesday, the next day. Instead at about 4:40 that same Monday afternoon, Warrenburg and his wife called at the Union's office where Warrenburg heatedly accused the Local's president Paul J . Stammer of having caused him to lose 2 days' work. A bitter verbal exchange took place between the two men. It is alleged that in this exchange Stammer threatened Warrenburg in violation of the Act that he would cause him to lose his job with the Respondent Employer for reasons unrelated to his failure to keep up his union dues. Under the above admitted but skeletonized facts, the issues under the complaints are: 1. Whether in the last 15 minutes of the last day for the payment of his 5-month delinquent union dues, Warren- burg through the agency of his wife made an effective and valid tender of his dues to the Union so as to place the Union in violation of Section 8(b)(2) of the Act for causing his Employer to suspend Warrenburg from his job the next day for reasons other than the ostensible nonpayment of his union dues. 2. Whether the Respondent Employer's discharge or suspension of Warrenburg on December 2, 1973, under the mandatory terms of its collective-bargaining agreement for 207 NLRB No. 98 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonpayment of his delinquent union dues in the face of Warrenburg's claim to his supervisors that his wife had tried to make a timely payment of his dues the previous day and the fact that the Employer had not made an independent investigation of that claim, constitutes a violation of Section 8(a)(3) and (1) of the Act under all the circumstances of this case. 3. Whether the Local's president Stammer, in violation of Section 8(b)(1)(A) of the Act, threatened Warrenburg with the loss of his job with his Employer for reasons other than his failure to pay his periodic union dues when Warrenburg after his temporary suspension from his job called upon Stammer to complain that he had caused him the loss of 2 days' work for nonpayment of union dues although his wife had tried to pay his dues on the deadline date. The complaint in Case 25=CB-1618 was issued on February 14, 1973, pursuant to an original charge filed on December 11, 1972. The complaint in Case 25-CA-5312 was issued on February 21, 1973, pursuant to an original charge also filed on December 11,1972. The answers of both the Union and the Employer deny the alleged unfair labor practices. The case was heard on May 2, 1973, at Indianapolis, Indiana. The briefs filed by the parties have been carefully reviewed and considered. For reasons hereinafter indicated, I will recommend that both complaints be dismissed in their entirety for failure of proof of the alleged unfair labor practices. FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent Employer, FMC Corporation, Link-Belt Chain and Conveyor Components Division, a Delaware corporation, maintains offices and a place of business at Indianapolis, Indiana, herein referred to as the Indianapo- lis facility, and various other facilities located throughout the United States. The Company, at its Indianapolis facility, is engaged in the manufacture, sale, and distribu- tion of chains and related products. During the past 12 months, a representative period, the Company, in the course and conduct of its business operations, purchased, transferred, and delivered to its Indianapolis facility, goods and materials in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana. During the same representative period, the Company, in the course and conduct of its business operations, manufactured, sold, and distributed at said Indianapolis facility, products valued in excess of $50,000 which were shipped from said facility directly to States other than the State of Indiana. It is found that the Company at all times here material has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union, Local Union No. 1150, United Steelworkers of America, AFL-CIO-CIC, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company's Indianapolis facility employs approxi- mately 1,500 persons and has been under collective- bargaining agreements with the Union for many years. Since at least 1965, these agreements have provided for voluntary checkoffs of union dues from wages. All but about three dozen employees out of the 1,500 employees at the Indianapolis plant have given the Company voluntary written authority for union-dues checkoffs from their wages. John V. Warrenburg, the Charging Party, has been an employee of the Indianapolis facility since 1965. Originally under voluntary checkoff for his union dues, Warrenburg withdrew his authorization for such checkoffs in 1968 because of his strong feelings that the United Steelworkers, hereinafter called the International, had in his opinion improperly raised union dues and thereafter paid his dues in cash directly to the Local at its Indianapolis office. From the time in 1968 when Warrenburg withdrew his voluntary union-dues checkoff authorization, he has been chronically delinquent in paying his periodic union dues to the Local. The record shows that he would always stay as far in arrears as the Local permitted him by their notices, generally pretty close to the last day. Under the Company's collective-bargaining agreement, it is "condition of em- ployment" at its Indianapolis plant that its employees "remain a member [of the Union] in good standing as to the payment of Union dues." " Under the constitution of the International, a member is "in good standing if he is not more than three (3) months arrears" in his periodic dues. The constitution further provides that members "who lose good standing shall stand automatically expelled and devoid of membership rights." The Local has been lax in enforcing the constitution's 3- month rule in that it has been allowing its cash dues paying members to run 5 months in arrears before revoking their "good standing" in the Union. To correct this situation, the Local, under date of October 3, 1972, sent a notice "To all Cash Dues Paying Members" in which they were told that .. beginning November 1, 1972, we must insist no member become more than three months behind in the payment of their dues." The notice also informed the cash dues paying members that as of November 1, 1972, the Local would notify the Company "of anyone no longer a member in good standing and 'demand that they be discharged" in accordance with its collective-bargaining agreement with the Company. Warrenburg received a copy of the described notice on or about October 4, 1973. On November 1, the Local notified Warrenburg by letter that he was "more than sixty days behind in payment" of his union dues and warned him that under the constitution of the International and the terms of the collective-bargaining agreement any member who was more than 3 months in arrears of his dues would lose his good standing in the Union and become subject to discharge by the Respondent Employer. The letter further notified Warrenburg that unless his dues were paid up by December 1, 1972, the Local would notify the Respondent Employer that he was no longer a member FMC CORPORATION 641 in good standing. The letter also informed him that his dues would have to be paid at the union hall "any time between the hours of 8 a.m., and 5 p.m., Monday through Friday." On the same date of November 1 the Local also sent a letter to the Respondent Employer's labor relations supervisor advising that Warrenburg was 60 or more days in arrears in the payment of his union dues and that unless the Local notified the Company that Warrenburg had removed his arrearage, the Company was requested to discharge Warrenburg 30 days from the time it received the letter. As the letter was dated November 1 and it is stipulated that the letter was received by the Company on November 2, the record shows that the Company properly interpreted the letter to mean that Warrenburg was not to be allowed to report to work on December 2 unless prior thereto he had paid up his delinquent dues. This is also the interpretation required under the provisions of both the constitution of the International and the current collective- bargaining agreement here involved dealing with the requirements that members must remain in good standing by not being in arrears more than 3 months. Actually as of December 1, 1972, Warrenburg was 5 months in arrears in his union dues, -not the 3-month limit prescribed by the constitution of the International for remaining in good standing as a member. B. Critical Events of December 1, 1972, Re Alleged Tender of Union Dues Warrenburg and his wife Margaret, the mother of several children, are both employed full time. As heretofore noted, Warrenburg is employed at the Indianapolis facility of the Respondent Employer. Mrs. Warrenburg is employed as a press operator at a printing plant located about 2 miles from where her husband works. On Friday morning, December 1, 1972, the deadline for the payment of Warrenburg's delinquent union dues, Mrs. Warrenburg drove her husband to his place of employment and dropped him off and then continued on to her place of employment. That Friday was payday for both of them. The union offices where Warrenburg pays his cash dues are within an 8 to 10 minute walk from the plant where he works. Instead 'of personally taking care of the payment of his own union dues during his 45-minute lunchbreak that noon,' Warrenburg while en route to work with his wife asked her to drop in at the union offices and pay his dues out of her paycheck after she finished work at 4:30 p.m. She was then to pick him up at his plant where he was scheduled to work that day until 4:45 p.m., and then the two were to head for an evening of bowling. Warrenburg specifically told his wife that his dues had to be paid that day or else he would face suspension from his job. Mrs. Warrenburg arrived at the union hall at about 4:45 p.m., that day. The Local's regular closing time is 5 p.m. Finding the lights off at the teller's cage where union dues are paid and no one there to receive dues, she proceeded down the hall to a conference room from which she heard voices emanating. There the Local's board of directors, with 12 board members present, was in session under the chairmanship of the Local's president Paul J. Stammer. She knocked on the door and a man close to the door opened it and asked what she wanted. I credit her testimony that she replied that she "wanted to pay Union dues." I also credit her testimony that the man asked her to repeat what she had just said and that she thereupon raised her voice "a little bit" and told him again that she "wanted to pay Union dues." There is a direct conflict of testimony of what next transpired. Mrs. Warrenburg testified that "a man at the other end of the room answered and told me that the girl had already left." At that time Mrs. Warrenburg did not know the identity of the man who first asked her what she wanted or the man at the other end of the room who answered that "the girl had already left." She later discovered that the man who had answered her from the other end of the room was the Local's President Stammer. Stammer in his testimony admitted that at the union board meeting of December 1 at about 4:45 p.m. he saw an unidentified woman at the door of the conference room whom he later learned was Mrs. Warrenburg, but flatly denied that he heard her say at any time that she was there because she "wanted to pay Union dues." His version of what occurred was that he was preoccupied at the time with the polling of board members on some urgent matter before the board when he suddenly saw an unknown and unidentified woman at the door. He quizzically asked her, "Yes?", obviously meaning what did she want. He testified that she replied, "Is the secretary here?" and that he, then assuming that this stranger was a friend of the office secretary who receives union dues, answered, "No, she's gone for the day." He stated that thereupon the unidenti- fied woman said, "Thank you" and walked out. Stammer's version of the occurrence is corroborated by Thomas Hanes, Don Alexander, and Robert Pride who were also in attendance at the meeting. Mrs. Warrenburg by her own admission never at any time identified herself by name or told anyone at the union board meeting that she was the wife of John V. Warren- burg or mentioned his name or that she came to' pay his dues. All she said by her own admission was that she was there "to pay Union dues." There is no creditable evidence that anyone at the board meeting knew her or recognized her as the wife of John V. Warrenburg. The record is further clear that Stammer did not know who she was. At 4:50 p.m., or within 5 minutes after leaving the union offices, Mrs. Warrenburg picked up her husband in her car. He asked her if she had been to the union offices to pay his dues. In replying 'she told him her version of what had transpired as set forth above, but failed to tell him that she did not identify herself to the union officials at the Local's offices or in anyway let them know that she had come to pay John V. Warrenburg's union dues. Her husband replied, "Well, I'll go tomorrow' 'during my lunchtime, I'll run over and pay them." " They then went home because her husband "had to bowl" that night. The union offices are open from 8 a.m. to 5 p.m., everyday in the week except Saturday and Sunday. On the 1 Warrenburg received his paycheck in the morning before his lunch- break. There is a bank within 3 blocks of the plant where many employees cash their paychecks. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deadline Friday here involved Stammer had given the office girl, who functions as a secretary and cashier for the Local, permission to leave at 4:30 p.m. to do some personal shopping as he would be at the office in any event until after 5 p .m. The union board meeting ended at about 5:30 p.m. and thus the Local's offices were open until then. I find that Warrenburg, upon receipt of word from his wife at 4:50 p .m., that she had not succeeded in paying his dues, could have personally presented himself at the Union's offices prior to 5 pan., and there made timely tender of his delinquent dues before the scheduled sanctions for nonpayment were to go into effect. Discussions and Conclusions Of the two versions of the verbal exchange between Stammer and Mrs. Warrenburg on December 1, 1972, at 4:45 p.m., when she startlingly appeared at the entrance of the Union's conference room, I credit Stammer's version that Mrs. Warrenburg, in response to his monosyllabic "Yes?" inquiry as to what she wanted , merely asked, "Is the secretary here?" I do not credit Mrs. Warrenburg's testimony that Stammer's first words to her were in reply to her statement to a board member near the door that she was there "to pay union dues." The record is clear, however, that whether Mrs. Warrenburg communicated to Stammer she was there to pay union dues or merely asked him if the secretary was in, Stammer " replied that the secretary was "gone for the day." While I credit Mrs. Warrenburg's testimony that when she opened the door to the conference room and was asked by the board member nearest to the door what she wanted that she twice told him she "wanted to pay union dues," I credit Stammer's flat denial that he heard her make that statement. I credit Stammer's denial because his testimony shows that at the time Mrs. Warrenburg made her unexpected appearance he was deeply preoccupied with polling the union board members on an urgent matter before the board and completely oblivious to her presence until he suddenly saw her when he looked up and put to her the sharp question, "Yes?" The fact that Stammer was towards the rear of the conference room surrounded by a dozen union board members also tends to corroborate Stammer's denial that he heard Mrs. Warrenburg state that she was there to pay union dues. The record is clear that Stammer in his brush with Mrs. Warrenburg at the conference room cannot be deemed to have replied as he did because of any animus to her husband over his chronic delinquency in the payment of union dues because at that time Stammer had no idea that the lady he was speaking to was Mrs. Warrenburg. He did not discover that she was the wife of John V. Warrenburg until the following Monday. Finally I credit Stammer's version of the colloquy between himself and Mrs. Warrenburg against her version because of his more convincing demeanor and because his version was corroborated by three other board members who were also present at the meeting. The laches which resulted in Warrenburg's temporary suspension for some 10 hours was brought on by his own failure, either personally or through his wife, to make a timely and identifiable tender of long overdue union dues; it did not result from any laches or any want of duty on the part of the Union. But even if full credence is given to Mrs. Warrenburg's testimony that in her encounter with Stammer at the conference room, Stammer was aware of her purpose there because she had twice stated to the board member -nearest to her that she "wanted to pay union dues ," I find that that statement was merely -precatory in nature and not an effective or valid tender or offer of dues because she did not identify herself or identify the person in whose behalf she wanted to pay dues. As stated in 17 American Jurisprudence 2d, 3, "An- offer must be definite and certain." Mrs. Warrenburg's "offer" lacked definiteness and certainty not only because she did not directly or indirectly identify the person for whom she was offering to pay union dues -but also because she did not actually tender the money for the delinquent dues. As stated in original edition of 52 American Jurisprudence, 7, page 219, "A mere offer to pay does not constitute a valid tender;' the law requires that the tenderer have the money present and ready, and produce and actually offer it to the party. Tender implies the physical act of offering the money or thing to be tendered, but this cannot rest in implication along. The law requires an actual , present, physical offer; it is not satisfied by a mere spoken offer to pay...." Under the circumstances here present where her hus- band faced the loss of his job unless his long delinquent dues were paid on the critical date here involved, I find that the offer by an anonymous person to pay dues for an anonymous union member did not constitute an effective and valid tender of union dues within the prescribed time limit to prevent the application of sanctions for nonpay- ment of the overdue union dues. The record leaves no doubt that Stammer would have stopped everything to clear John V. Warrenburg of his delinquency if Mrs. Warrenburg had told him that she was John V. Warrenburg's wife, that she had come in to pay his dues and that unless his dues were paid that day her husband would lose his job. In summary I find and conclude that Charging Party John V. Warrenburg did not make a valid tender of his delinquent union dues to the Respondent Union on December 1, 1972, the critical date for remaining in good standing in the Respondent Union , and that accordingly the Union is not in violation of Section 8(b)(2) of the Act for causing the Employer to suspend Warrenburg the next day for nonpayment of his periodic dues as required under the collective-bargaining agreement. C. Critical Events of December 2, 1972, Re Charges Against Respondent Employer The following day, Saturday, December 2, 1972, Warren- burg, who was scheduled to work 8 hours that day, arrived at the plant at 6:40 a.m. Upon arrival, he was told by his line foreman, Thomas C. Roseman, that he could not allow him to check in until he talked to the day shift foreman, William Mitchell, who had not yet arrived concerning his nonpayment of union dues . When Mitchell got to the plant a few minutes later, he informed Warrenburg that he had orders not to allow him to work because he had not paid his union dues. When Warrenburg explained that his wife FMC CORPORATION 643 had tried to pay his union dues on Friday but that the Union "would not accept them," Mitchell informed him that he could not allow him to check in until he had a "release" from the Union. Thereupon, Warrenburg made an attempt over the telephone in the presence of Mitchell and within his hearing to get -a release from the Union by placing calls to various -union officials who worked at the plant but was unsuccessful because no union officials were present at the plant that Saturday. The record shows that there is a longstanding agreement between the Local and manage- ment that no union business is to be conducted on Saturday because the various departments at the plant do not operate on Saturday unless their production is vitally needed. Moreover, the union offices are not open on Saturdays. I find that Warrenburg's unsuccessful efforts that Saturday, morning by telephone, in the presence of Foreman Mitchell and with his full cooperation, to contact various, union officials for a work release on the ground that his wife had made a timely tender of his dues, constituted in effect an investigation by Warrenburg's Employer into-his claimed tender as fully as if Mitchell had himself made the telephone calls. This is manifest from the fact that Mitchell did not roughly brush aside Warren- burg's claim of a timely tender of his union dues but on the contrary, gave Warrenburg every opportunity to establish his claimed tender and right to a work release in his presence. Mitchell could not have done better if he had made the telephone calls himself as the results would have been the same. The investigation having proved abortive, Mitchell again refused to allow Warrenburg to check in for work without a -release from the Union. Warrenburg then left the plant shortly after 7 o'clock that morning.2 Thereafter Warrenburg contacted the union office but found it closed. He then tried to telephone Stammer, the aforementioned union president, and Thomas Hanes, the Local's grievance chairman, but their telephones rang without response. He likewise tried to telephone the Local's financial secretary, William T. Bowers, at his home several times but was told each time that Bowers was out but expected back shortly. Finally at about noontime, that same Saturday, Warren- burg with his wife drove to the Bowers' residence and there in Bowers' absence, persuaded Mrs. Bowers to allow him to leave, with her $26 in cash for his delinquent union dues. At some time prior to 9 a.m., Monday, December 4, 1972, the` Local accepted the union dues Warrenburg had left with Mrs. Bowers the preceding Saturday and authorized the Company to permit him to return to his job as of 9 o'clock that Monday morning. Neither the Company nor the Local was able to notify Warrenburg of his release by telephone as he does not have a telephone at his residence. When Warrenburg called the plant at about 1 p.m. that day to find out if he had been released, he was informed that he had been released as of 9 o'clock that morning. However, he chose not to return to work until the next day, Tuesday, December 5, 1972, at his usual starting time of 7 a.m. While at work that day, the Union delivered a receipt to Warrenburg by hand dated December 4, 1972, showing payment in the amount of $26 for his dues for the months of July, August, and September 1972, and 38 cents for application on the dues for the month of October. Thus upon his return to work on December 5, 1972, Warrenburg was still delinquent in his union dues for the month of October except for 38 cents thereon and for month of November 1972, but not sufficiently to affect his "good standing" in the Union under the International's constitu- tion which provides in effect as noted above that a member's good standing is not affected unless the member is more than 3 months delinquent in the payment of his union dues. Although the complaint against the Respondent Employ- er alleges that the Company on or about December 2, 1972, discharged Warrenburg and thereafter failed and refused to reinstate him to his position, both of these allegations are not true. The fact is that the Company on December 2, 1973, did not discharge Warrenburg but instead placed him "on indefinite suspension" pursuant to its written notice to him dated November 3, 1972, that such action would be taken against him if he failed to correct -his "arrearage in dues . . . on or before December 1, 1972." In accordance with the undisputed testimony of the Compa- ny's personnel manager, Don Noble, "indefinite suspen- sions" are meted out only in union dues delinquency situations "as a precaution against a- deficiency in communication," because it is easier to put an , employee back on the payroll if an error has been made in his separation from his job under an indefinite suspension than under an outright discharge. Similarly, the allegation that the Company "failed and refused, and continues to fail and refuse , to reinstate" Warrenburg "to his, former -or substantially equivalent position of employment" is likewise not true because the Company reinstated Warrenburg to his job as of December 4, 1972, although he chose not to report to work until December 5, and he has been in continuous employment with the Company ever since. Counsel for General Counsel, recognizing that there could be variances between the allegations of the com- plaint and the proof, moved at the end of the trial to conform the pleadings to the proof. The motion is hereby granted. Accordingly the allegation of the complaint which alleges that the Company discharged Warrenburg on or about December 2, 1972, is deemed amended to read that the Company placed Warrenburg on indefinite suspension as of December 2,' 1972, and the allegation that the Company failed to reinstate Warrenburg to his job is entirely deleted. It is noted that in addition to Warrenburg 12 other members of the Union were also notified by the Union- and the Company at the same time Warrenburg was some 30 days in advance of December 1, 1972, that unless they paid 2 Before leaving the plant, Warrenburg offered Mitchell $26 in cash to Warrenburg as an irrelevant fact as obviously Mitchell was not the agent of hold in payment of his union dues until the following Monday or until he the Union to receive union dues or to restore Warrenburg to good standing could straighten out the matter. Mitchell declined to take the money on the in the Union and because in any event payment of Warrenburg's dues on ground that he could not interfere in union business. I deem this offer by Saturday would not have been a timely payment of his dues. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their delinquent dues by December 1, 1972, they would lose their jobs and good standing'in the Union. Only 3 of these 12 members waited as late as November 30, 1972, to pay their dues. None waited until the deadline date of December 1 to pay up. Discussion and Conclusions The issue here is whether the Respondent Employer violated Section 8(a)(3) and (1) of the Act by temporarily suspending Warrenburg at the request of the Union, thus discriminating against him in regard to his tenure within the meaning of Section 8(a)(3) of the Act. This depends in turn under the second proviso of Section 8(a)(3) on whether at the time of the Company's suspen- sion of Warrenburg it had "reasonable grounds for believing" that Warrenburg at the request of the Union was being "termmated3 for reasons other than the failure of the employee to tender the periodic dues." On that issue I find that the record is completely devoid of any evidence that the Company suspended Warrenburg for any reason other than his failure to pay his periodic dues. For a violation of the section of the Act here under consideration there must be some evidence that the Employer had knowledge or notice that the Union was requesting an employee's termination for some reason other than the nonpayment of dues. Counsel for General Counsel in his brief states that, "The Board has traditionally held that statements of employees to company officials that they tried to pay dues and the dues had been refused by the Union constitutes a sufficient basis for a finding that the Company had reasonable grounds for believing that membership in the Union was terminated for reasons other than the failure of the employee to tender periodic dues uniformly required as a condition of retaining membership and requires an investigation into the allegation." As authority for the above summary of Board holdings, counsel for General Counsel cites Peerless Tool & Engineering Co., 111 NLRB 853, enfd. sub nom. N.L.R.B. v. Die and Tool Makers, 231 F.2d 298 (C.A. 7, 1956), cert. den. 352 U.S. 833 (1956), and International Union of Electrical, Radio and Machine Workers, Frigidaire, Local 801, 129 NLRB 1379, enfd. 307 F.2d 679 (C.A.D.C., 1962), cert. den. 371 U.S. 936 (1962). However, an examination of both the Board and Court decisions in these two cases show that something more than the mere "statements of employees to company officials that they had tried to pay dues and that the dues had been refused by the union" was involved in the holdings therein "that the company had reasonable grounds for believing that membership in the union was terminated for reasons other than the failure to the employee to tender periodic dues." In each of the two cases there are findings that the Company had actual knowledge or notice that something more was involved in the demands of the Unions for the discharge of the affected employees than the mere nonpayment of union dues . Thus in the Peerless case, the Court affirmed the Board finding that the "Company had knowledge of the Union's policy of refusing to accept dues until the assessment was paid . . ." (Emphasis supplied.) Similarly in the Frigidaire case, supra, the Court affirmed the Board's finding that the Union's request for [employee] Snyder's discharge was not truly predicated on his failure to pay dues" and that his Employer knew this. (Emphasis supplied.) In contrast in the instant case the Company's suspension of Warrenburg was based solely on the Union's notice to it of his failure to pay his periodic dues and there is no evidence that the Respondent had "reasonable grounds for believing" that Warrenburg was being terminated "for reasons other than the failure to tender the periodic dues." On the contrary, Warrenburg's chronic delinquency in his union dues payment gave the Company more than ample reason to believe that the Union requested his discharge only because of such delinquency. The General Counsel's further dual contention that the Company was under duty to investigate Warrenburg's claim that he had tried to make a timely tender of his dues and that the Company made no effort to investigate the claim, is untenable. While it is true that Warrenburg's foreman did not himself pick up the telephone for calls to union officials to verify Warrenburg's claim of tender of his dues, the Company in effect for all practical purposes did make such an investigation when its foreman gave Warrenburg the fullest opportunity in his presence to contact union officials at the plant for verification of his claim of a timely tender of his dues. Under these circumstances, Warrenburg's investigation became the Company's investigation. Warrenburg's efforts to reach union officials on the Saturday here in question were unsuccessful ; the foreman would have had the same lack of success if he had attempted to make the calls. Thus as the investigation proved unsuccessful, the Company had no choice but to temporarily suspend Warrenburg pur- suant to the Union's request pursuant to its obligation under its collective-bargaining agreement. Moreover, contrary to General Counsel's contention, an employer, in the absence of an impermissible cause as here, is not under any duty to investigate the truthfulness of a Union's assertion that a member is delinquent in his dues before it meets the demands of the Union for the discharge of the member because of his delinquency. In such circumstances, there is no requirement that the employer must "first audit the union's dues records" before it, can honor a union's request that a member be suspended for nonpayment of his dues. Producers Transport, Inc. v. N.L.R.B., 284 F.2d 438 (C.A. 7, 1960); Zoe Chemical Company, Inc., 406 F.2d 574 (CA. 2, 1969); Allied Maintenance Company, 196 NLRB 566; In the latter case the Board adopts with approval the following court holding in the Zoe case: Clearly some kind of specific information as to the illegality of the union's request must be communicated to the employer: "In order to hold the employer ... there must at least be proof that he knew he was acting for an impermissible cause." NLRB v. Local 138, IUOE, 293 F.2d 187, 197 (2d Cir. 1961). Absent actual d 3 I deem the word "suspended" to be equivalent to the word from the payroll "terminated" as used in the Act because in either case it means separation FMC CORPORATION 645 knowledge of some sort, the employer has no duty independently to inquire into the circumstances behind the union's demand (Emphasis supplied.) In the present case General Counsel is not only contending that the Company was under an obligation to investigate the truthfulness of the Union's assertion that Warrenburg was delinquent in his dues, but also to investigate the legal sufficiency of Mrs. Warrenburg's alleged tender of her husband's dues because that question is inherent in the question of whether Warrenburg was delinquent in his dues. In that connection, the Respondent Employer makes the following contention: Was an assistant foreman supposed to resolve all of the questions posed by this case? If so, how should he have done so? To do so he would have had to complete the required education for a law degree, held a one-day hearing of all interested witnesses, and weighed legal arguments from both Warrenburg and the Union. Then he would decide which witnesses to credit and which legal theories were correct. . . . We submit that an assistant foreman on Saturday morning is not required to exercise such talents. I concur in this view. Since an employer is not under any duty to audit a union's dues records for verification of a member's nonpayment of his periodic dues before it meets the union's request for the suspension of the member for nonpayment of dues, it must necessarily follow that an employer is even less obliged to investigate and determine the legal sufficiency of an alleged and disputed tender of dues before it complies with a union's demand for a member's suspension from his job for nonpayment of dues. In summary under the circumstances of this case I find that the Respondent Employer is not in violation of Section 8(a)(3) and (1) of the Act by reason of its temporary suspension of Warrenburg for nonpayment of periodic union dues pursuant to the request of the Union. D. Critical Events of December 4, 1972, Re Charges Against Respondent Union The final issue in the case is whether the Respondent Union violated Section 8(b)(1)(A) of the Act by threaten- ing to get Warrenburg's job on December 4, 1972, for reasons other than failure to tender his periodic dues. As heretofore shown, the Company, by reason of the Union's release, was ready to return Warrenburg to work status on Monday, December 4, 1972, at 9 a.m., following his suspension the preceding Saturday at the Union's request for nonpayment of dues. As Warrenburg has no telephone at his home, he did not get word of his release until about 1 p.m. that day when he telephoned the plant to see if the Union had released him. Instead of utilizing his release to return to work that same afternoon, Warrenburg with his wife went to the Union's office late that afternoon where he had a heated and angry exchange with the Local's president, the aforementioned Paul Stammer, over the circumstances of Mrs. Warrenburg's alleged tender of his dues the previous Friday. Stammer's credited testimony shows that Warren- burg told him that "he was going to get somebody's ass for costing him two days' work." In the exchange much profane and insulting language passed between the two men. During the course of the fray as here pertinent to the issue under discussion Stammer said to Warrenburg (according to Warrenburg's own testimony), "Listen here ... you cheap son-of-a-bitch. I am going to have your job. I sent out a notice today and I'm going to get your job." Stammer's recollection of the colloquy was that he told Warrenburg "that he was going to have to keep up his dues structure, keep in good standing, or he could lose his job." The notice Stammer told Warrenburg he had sent out to him that day, December 4, 1972, was the Union's standard union dues delinquency letter. Like the earlier delinquency notice sent to Warrenburg on November 1, 1972, the December 4 notice to him reads in part as follows: Dear Brother; Our records show that, as of this date, you are more than sixty days behind in payment of your Union dues. We must remind you, that, in accordance with the Constitution of the United Steelworkers of America, and the Labor Agreement between the Union and Link Belt Division of F.M.C. Corporation; any member who is more than three (3) months in arrears in payment of his dues is no longer a member in good standing of this Union and is, therefore, subject to discharge from employment with Link Belt. Unless your dues are paid up to date by the first of January, 1972 we will notify the Link Belt Division of F.M.C. Corporation that you are no longer a member in good standing. As Warrenburg since the trial herein has remained chronically delinquent in the payment of his dues, the Local has sent him notices identical with the above under dates of January 1, February 1, March 1, and March 30, 1973. Discussion and Conclusions I credit Warrenburg's testimony that Stammer told him, "I am going to have your job. I sent out a notice today and I'm going to get your job." Although General Counsel admits that the Union's dues delinquency "notice" alluded to in Stammer's above heated remark to Warrenburg is "privileged," he contends that Stammer's statement to Warrenburg that he was going to get his job, was made "m the context that Warrenburg was giving the Union trouble and as a result, the Union would get his job" and that, therefore, the Union through Stammer threatened Warren- burg that it would get his job for a reason other than failure to tender periodic dues in violation of Section 8(b)(1)(A) of the Act. I disagree. The angry remark, "I will get your job," cannot be considered in isolation as it was immediately followed by the declaration that a union delinquency notice had been sent out to Warrenburg that very day. The plain and obvious meaning of the whole of Stammer's utterance to Warrenburg was that he would have his job if 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not keep himself in good standing with the Union by the payment of his periodic dues. That pronunciation is completely privileged under the Act. There is nothing in the record to suggest that Stammer was threatening Warrenburg with the loss of his job except for the nonpayment of his periodic dues. In summary I find and conclude that there is a failure of proof that the Respondent Union is in violation of Section 8(b)(1)(A) as alleged in Case 25-CB-1618. Extraneous to the issues discussed above is, the signifi- cance to be attached to the fact that the Local after the December 1, 1972, deadline date accepted Warrenburg's delinquent dues and released him to return to his job as of December 4, 1972, notwithstanding the fact that he had been expelled from the Union as of 5 p.m., December 1, 1972, for failure to make a legally sufficient tender of his dues by that time. Stammer testified that the Union accepted Warrenburg's late payment of his dues and released him to return to his job because it was later discovered that the unidentified woman who appeared at the union offices just minutes before its closing time on December 1, 1972, had been Mrs. Warrenburg and that her purpose there was to pay her husband's dues although as the record shows she had not mentioned her name or her husband's name at the time. General Counsel contends that, "The Union, by accept- ing his [Warrenburg's] dues on December 4, 1972, acknowledged and even tacitly admitted that he was never a member in bad standing, subject to termination under the contract." There is no evidence of record to support such a "tacit" admission by the Respondent Union. It appears that the Local reinstated Warrenburg to good standing in the Union for humane reasons although under the Internation- al's constitution it could not do so without the agreement of the International, just as it had formerly permitted cash paying dues members to run as high as 5 months in arrears in their dues although the International's constitution requires expulsion after a 3-month delinquency in the payment of delinquent dues. It is also possible that the Local reinstated Warrenburg in what turned out to be the futile hope that the reinstatement would avoid an expen- sive law suit. But the fact that the Union allowed this proceeding to go to trial on the merits rather than admit violation of the Act shows that there has been no tacit admission by the Union that Warrenburg "was never a member in bad standing, subject to termination under the contract." CONCLUSIONS OF LAW 1. FMC Corporation, Link-Belt Chain and Conveyor Components Division, the Respondent Employer herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 1150, United Steelworkers of America, AFL-CIO-CLC, the Respondent Union herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not show that the Respondent Employer violated Section 8(a)(3) and (1) of the Act as alleged. 4. The evidence does not show that the Respondent Union violated Section 8(b)(2) or (1)(A) of the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I recommend the following recommended: ORDER4 It is hereby ordered that the complaints herein be, and they hereby are, dismissed in their entirety. 4 In the event no exceptions are filed as provided by Section 102.46 of Section 102.48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulations of the National Labor Relations Board, the become its findings, conclusions, and Order, and all objections thereto shall findings, conclusions, and recommended Order herein shall, as provided in be deemed waived for all purposes.