National Labor Rel. Bd. v. LOCAL 3, BLOOMINGDALE, ETC.

• Decision Date: 01 November 1954
• Docket Number: Docket 22977.,No. 42,42
• Citation: 216 F.2d 285
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 3, BLOOMINGDALE, DISTRICT 65, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

216 F.2d 285 (1954)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 3, BLOOMINGDALE, DISTRICT 65, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, CIO, Respondent.

No. 42, Docket 22977.

United States Court of Appeals Second Circuit.

Argued October 6, 1954.

Decided November 1, 1954.

Elizabeth Head, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Bernard Dunau, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Irving Rozen, New York City (Weisman, Allan, Spett & Sheinberg and Milton C. Weisman, New York City, on the brief), for respondent.

Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit Judges.

CLARK, Chief Judge.

The National Labor Relations Board asks enforcement of its order issued against Local 3, Bloomingdale, District 65, Retail, Wholesale & Department Store Union, CIO, for violation of § 8 (b) (1) and (2) of the Labor Management Relations Act, 29 U.S.C. § 158 (b) (1) and (2), in the discharge of William P. Ward. Under the terms of a maintenance-of-membership clause in its collective bargaining agreement with the employer, Bloomingdale Bros., Inc., the union had the right to demand the discharge of any employee who failed to pay his membership dues. The present proceeding arises because it had made such a demand with respect to Ward, and the employer had complied by discharging him. The Board, one member dissenting, overruled the contrary findings of the Trial Examiner to find that Ward had been discharged not for nonpayment of dues, but for nonpayment of fines. Hence it concluded that the discharge was wrongful, although it absolved the employer from complicity. 107 NLRB No. 62. The Board's order, for which it here seeks enforcement, requires the respondent union to acquiesce in the reinstatement of Ward and to compensate Ward for lost pay.

Respondent resists the Board's interpretation of the union's activities and asks us to deny enforcement of the Board's order. It does not here, nor did it before the Board, argue that it had the right to demand discharge for nonpayment of fines. The Labor Management Relations Act preserves the union's right to maintain its own disciplinary rules, § 8(b) (1) (A), 29 U.S.C. § 158 (b) (1) (A), but limits the sanction of discharge to failure to tender periodic dues and initiation fees. § 8(b) (2), 29 U.S.C. § 158(b) (2). Both the Board and the courts have consistently held that "periodic dues" do not include fines. See, e. g., N. L. R. B. v. International Ass'n of Machinists, Local No. 504, 9 Cir., 203 F.2d 173; Electric Auto-Lite Co., 92 N LRB 1073, affirmed per curiam N. L. R. B. v. Electric Auto-Lite Co., 6 Cir., 196 F.2d 500, certiorari denied Electric Auto-Lite Co. v. N. L. R. B., 344 U.S. 823, 73 S.Ct. 23, 97 L.Ed. 641. Respondent contends, however, that Ward's discharge was based solely on his refusal to tender the prerequisite dues.

The facts leading up to the filing of the unfair labor practice complaint were the culmination of a long-standing feud between Ward and the union. Ward joined the union only reluctantly at the last moment of a grace period. Thereafter he was recurrently delinquent in his payment of dues. In the summer of 1951 he was fined by the union for his unexcused absence from compulsory union meetings. In accordance with a well publicized, though sporadically enforced, union policy, Ward was notified that the union would accept no further payment of dues until the outstanding fines were settled. Although the union accepted a tender of dues by mail in August, 1951, it repudiated three personal tenders in October and November, 1951, and January, 1952. Six months later, in June, 1952, after persistent union demands for Ward's separation, Ward was called into the office of Vincent Brennan, the employer's personnel manager. Brennan strongly urged Ward to make another tender, informing him that the union had agreed to accept his dues without payment of fines. Ward's attitude throughout this conference was one of obdurate recalcitrance. He refused to make the necessary tender and was discharged the next day. In signing his final pay check Ward noted on it that he was being discharged for nonpayment of union dues.

A variety of conclusions has been drawn from this set of circumstances. The Trial Examiner found that Ward had demonstrated by his statements and conduct that "he had no intention of tendering dues to bring his membership in the Union into good standing and that he mistakenly relied upon the Union's past conduct and his belief that by the institution of these proceedings he could retain his employment." The Board, on the other hand, considered Brennan's remarks to Ward insufficient to dispel reasonable doubts of the utility of tendering dues without the payment of fines. "In the absence of specific notice from the Union to Ward that his dues would be accepted without regard to fines, we are persuaded on the facts in this case that another tender by Ward would have been a futile...