NLRB v. Spector Freight System, Inc.

• Decision Date: 05 January 1960
• Docket Number: No. 16291.,16291.
• Citation: 273 F.2d 272
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPECTOR FREIGHT SYSTEM, INC., et al., Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

273 F.2d 272 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPECTOR FREIGHT SYSTEM, INC., et al., Respondents.

No. 16291.

United States Court of Appeals Eighth Circuit.

January 5, 1960.

Melvin Pollack, Atty., N. L. R. B., Washington, D. C., for petitioner.

Norman W. Armbruster, St. Louis, Mo., for respondent Local 600, Highway & Freight Drivers, etc.

Harvey M. Fisher, St. Louis, Mo., for respondent, Spector Freight System, Inc.

Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

Pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160 (e) hereinafter referred to as "Act", the National Labor Relations Board hereinafter called "Board", petitions for enforcement of its order against respondent Spector Freight System, Inc. hereinafter called "Company", and respondent Local 600, Highway & City Freight Drivers, Dockmen & Helpers hereinafter called "Union". The Company and Union have cross-petitioned for review of the Board's order pursuant to § 10(f) of the Act, 29 U.S.C.A. § 160(f). The Board's decision and order are reported at 123 N.L.R.B. No. 3. See also, CCH N.L.R.B. Decisions, 1958-1959, ¶56,088.

The Board's action resulted from charges brought by Paul H. Conrad to the effect that certain acts of respondents, culminating in his discharge by Company, at the request of Union, constituted unfair labor practices in violation of the Act. Union alleged that Conrad's discharge was lawfully demanded pursuant to its union-security agreement with Company, and Company contended that it acted in good faith in discharging Conrad, pursuant to lawful demand made under said security agreement.

The pertinent facts, as found by the trial examiner, and adopted by the Board, are as follows:

Paul Conrad, who had been a member of Union for a number of years, was employed by Company as an over-the-road driver on November 6, 1957. He was unemployed during October. When Conrad was hired by Company he executed a check-off card which authorized Company to deduct $5 from Conrad's pay as dues, and remit that amount to Union on a monthly basis. Conrad did not pay dues directly to Union in November and December, and no dues were deducted from his pay for those two months. On December 31, 1957, in accordance with Union's constitution and bylaws, an entry was made on Conrad's account card, suspending him for nonpayment of dues for three months, the last entry of dues payment having been made in September, 1957. By draft and covering letter of January 2, 1958, Company, in accordance with its quarterly practice, remitted to Union, for Conrad, among other employees, $15 as quarterly dues for the months of January, February and March, 1958. On January 6, Union made three entries on Conrad's account card, each entry showing dues payment of $5; the entries did not allocate the payments to any particular month as did prior entries on the card. On January 8, John J. Lloyd, Company Supervisor, informed Conrad that an officer of Union wanted to see him, and that Conrad could not go out on a trip until he had cleared with Union. Later that day Conrad had a conference with Patrick M. Neary, secretary-treasurer of Union, at the latter's office, at which time Neary took the position that in accordance with the by-laws, Conrad owed dues at the rate of $6 per month, instead of $5, for either two or three months. Neary further insisted that Conrad also owed a reinstatement fee of $60 because of his suspension for failure to pay dues for October, November and December. Neary informed Conrad that the least Union would accept was $72 — a reinstatement fee of $60 plus dues for November and December at the rate of $6 for each month. Conrad took the position that he was not obligated to pay the reinstatement fee and was not liable for dues for October because he was unemployed during that month. At the close of this meeting, Neary informed Lloyd by telephone that Conrad could remain on the job; that there was some discrepancy, but he was certain the matter could be worked out. Conrad returned to the job, but made no further payment to Union.

By letter to the Company dated January 30, 1958, Union requested Conrad's discharge for failure to comply with the union-security provision of Union's contract with Company.¹ Union's president also informed the labor relations director of Company that Conrad's discharge was requested because of his failure to pay dues for October, November and December, 1957. Conrad was discharged on February 3, 1958. Thereafter, and within a few days, Union refunded the $15 to Conrad which was the amount the Company had deducted from his pay and remitted to Union.

From the foregoing facts, the Board concluded that Union's insistence upon Conrad's discharge was unlawfully predicated upon his nonpayment of the October pre-hire dues, and that Company "was fully apprised that the discharge was demanded for this reason." Accordingly, the Board concluded that Company and Union had violated §§ 8(a) (3), 8 (a) (1), and 8(b) (2), 8(b) (1) (A), respectively, by discharging Conrad for failure to pay dues for October, 1957, during which time he was not employed by Company.

Additionally, the Board concluded that even if it be assumed that Conrad's discharge was not predicated upon his failure to pay October dues, but because he failed to pay the reinstatement fee of $60, as urged by Union, Conrad's termination of employment was a violation of §§ 8(b) (1) (A), 8(b) (2), 8(a) (3) and 8(a) (1), this for the reason that the fee which Union sought to exact resulted from computation of dues for a period during which Conrad was under no statutory obligation to pay such dues in order to retain his job. On this issue, the trial examiner found that such demand for the reinstatement fee constituted restraint and coercion by Union, only, in violation of § 8(b) (1) (A) of the Act. By finding such demand to be a violation of § 8(a) (3) and § 8(a) (1), it is apparent that the Board concluded that, by discharging Conrad for non-payment of the reinstatement fee, based unlawfully upon a pre-hire arrearage, the Company also had violated the Act.

In addition, the Board also adopted the trial examiner's finding and conclusion that Union violated § 8(b) (1) (A) of the Act by threatening Conrad with loss of employment if he did not pay November and December dues at the rate of $6 rather than $5 per month, the additional $1 constituting a penalty or fine.

The Board's order now before us, provided that, as to Company, it should cease and desist from encouraging membership in Union by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure, except as authorized by § 8(a) (3) of the Act; or from restraining its employees in the exercise of the rights guaranteed in § 7 of the Act. As to Union, the order required it to cease and desist from causing or attempting to cause Company to discriminate against its employees in violation of § 8(a) (3); from threatening to enforce any provisions of its constitution or bylaws in such a way as to condition employment upon payment of assessments or fines for nonpayment of periodic dues, or to condition employment upon payment of a reinstatement fee predicated upon a pre-hire arrearage, in violation of § 8(b) (1) (A) of the Act; or to restrain its members in the exercise of rights guaranteed by § 7 of the Act. In addition, the order required that Union take affirmative action by notifying Company that it withdraws objections to Conrad's employment, and by requesting that Company offer him immediate reinstatement; that Company offer reinstatement to Conrad; that Union and Company, jointly and severally, make Conrad whole; and that Company and Union post appropriate notices.

The National Labor Relations Act provides that employers and unions may enter into agreements whereby membership in a union may be required as a condition of continued employment. Section 8(a) (3). Labor organizations enjoy the right to prescribe their own rules for acquisition or retention of membership. Section 8(b) (1). However, it is further provided that non-membership or loss of membership, as grounds for dismissal, may only be founded upon failure of the employee to tender "the periodic dues and the initiation fees uniformly required as a condition of membership."² As stated by the Supreme Court in Radio Officers Union of Commercial Telegraphers Union, A.F.L. v. N. L. R. B., 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455, "The policy of the Act is to insulate employees' jobs from their organizational rights."

"The right to membership lies with the union alone, but the right to a job is surrounded by safeguards which limit a union\'s acts." Murphy\'s Motor Freight, Inc., 113 N.L. R.B. 524, 534, enforced, N. L. R. B. v. Murphy\'s Motor Freight, Inc., 3 Cir., 231 F.2d 654.

Thus the internal rules of a labor organization, designed to control its members, such as imposition of fines for failure to attend meetings, special assessments, and other penalties, not being "periodic dues," may not be enforced by the union by a threat of loss of employment. See Radio Officers Union v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (loss of seniority for late payment of dues; suspension for noncompliance with union's hiring rules); Westinghouse Electric Corp., 96 N.L.R.B. 522, enforced, N. L. R. B. v. International Ass'n of Machinists, etc., 9 Cir., 203 F.2d 173 (fine for dual unionism); The Electric Auto-Lite Company, 92 N.L.R.B. 1073, enforced, N. L. R. B. v. Electric Auto-Lite Company, 6 Cir., 196 F.2d 500, certiorari denied, 344 U.S. 823, 73 S.Ct. 23, 97 L.Ed. 641 (failure to attend meetings); N. L. R. B. v. Eclipse Lumber Co., 9 Cir., 199 F.2d 684, 36 A.L.R.2d 625 (refusal to picket); The Great Atlantic & Pacific Tea Co., 110 N.L.R.B. 918 (dues delinquency); Union Starch & Refining Co. v. N. L. R. B., 7 Cir., 186 F.2d 1008, 27...