Before DUFFY, Chief Judge, MAJOR and LINDLEY, Circuit Judges.
LINDLEY, C.J.: The National Labor Relations Board petitions for enforcement of its order finding that respondent had violated Section 8(b)(2) and (1)(a) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(2), (1)(a), by causing the discharge of Leona Boness, and ordering respondent to cease and desist from causing or attempting to cause the Company*fn1 to discriminate against its employees and from restraining its employees in the exercise of their rights guaranteed by the Act and to grant Boness certain mandatory relief.
The facts are not largely in dispute; the controversy is as to the legal consequences which spring from them. In 1952 respondent negotiated an agreement with the Company which provided, inter alia, for the recognition of respondent as exclusive bargaining agent for Company employees and for maintenance by all workmen of "membership in good standing" in the union as a condition of employment. In March 1953, in conjunction with a changed status in its international affiliation, respondent adopted a new constitution which altered the previously existing provisions for the payment of union dues by providing that, after the effective date of the new constitution, dues should be paid at a regular union meeting. By-laws adopted to implement the old constitution had provided, inter alia, that members be considered delinquent after failure to pay dues for three months. A second by-law, modifying a constitutional provision that the fee for reinstating a suspended member be "not less than $15.00", had provided that such fee be $10.00. No new bylaws were adopted, but that of respondent's parent organization providing that "any member over two months in arrears shall stand suspended" was adopted at a regular union meeting on March 26, 1953.
At the time of her discharge, Boness had been an employee of the Company and a member of the union for more than three years. She did not attend the March 26 meeting and stated that she was unaware of the new two-month delinquency rule. She paid her dues for January, February and March in the latter month, following her customary practice of paying for each quarter during the last month thereof. She paid for the second quarter in May; she testified that normally this payment would have been made in June, but that she had some extra money in May and used it to get her dues paid up.Under her customary three month practice, her next maturing dues would have been payable on or about September 10. Under the new two months rule, the date was August 14.
On August 10, respondent's financial secretary posted a list of names on the plant bulletin board headed "These members are two months in arrears." Boness' name was on the list, but the record does not show whether she saw the notice. On August 25, a strike occurred, which Boness refused to support. She and another employee continued working and crossed respondent's picket lines to enter the plant.*fn2 Because she had failed to respect the picket lines and participate in the strike, she decided not to attend the regular union meeting on September 10. On September 9, she purchased a money order in the amount of her dues for the third quarter and mailed it early enough to reach respondent before the meeting. On September 10, the order was returned to her by mail, with a note signed by respondent's financial secretary, which stated:
"No union dues acceptable except at union meetings. The union intends to file charges against you for nonpayment of dues. We advise you to be present at tonight's meeting."
She did not attend the meeting.
The strike was terminated on September 15. Shortly thereafter, Boness tendered the money order to respondent's financial secretary on the floor of the plant.It was not accepted.
On September 21, respondent asked the Company to notify several named employees, including Boness, that they were in arrears, and to give them a five-day grace period "to become in good standing," subject to discharge on their failure to do so. The Company replied that it understood that the named employees had paid their dues by mail and that respondent had refused to accept the payments; that some of these employees had turned their remittances into the Company office, and that such sums were available to respondent. Thereafter, the union consulted its attorney and was advised that a tender by mail was good under the law and should be accepted.
Respondent then called a special meeting on September 24 to permit delinquent employees to tender their dues in person. Boness attended and tendered her money order.The offer was refused on the ground that she owed a $15.00 reinstatement fee and that dues were not acceptable unless accompanied by the added fee. She refused to pay the assessment. At the next meeting on October 8, Boness again tendered the money order for her third quarter dues together with a second order for those payable for the fourth quarter. Her tender was again refused because it was not accompanied by payment of the reinstatement assessment, which she again refused to pay.
On October 27, respondent, by letter, requested the Company to discharge Boness for nonpayment of dues.On November 4, the employer advised respondent that it would not discharge a delinquent employee except upon proof that such employee had been expelled by the Union. The following day, following conversations between attorneys for the Company and respondent, the employer advised Boness to pay the reinstatement fee and loaned her the money necessary for this purpose. On November 6, she purchased a money order in the amount of the reinstatement fee and mailed it to respondent, together with an explanatory note and the money orders for dues which she had previously tendered.
At its regular meeting on November 12, respondent expelled Boness.On the following day, the union president sought to return to her the envelope she had mailed to respondent on November 6 and the money orders which it contained. She refused to accept them and told the president to take them to the company office. On November 18, respondent notified the company that she, Boness, had been expelled and again demanded her discharge.Pursuant to this demand she was discharged on November 19.
In its original decision on February 1, 1955, the Board concluded that Boness made a proper tender of her dues on September 9 which was refused for a reason not related to the reinstatement fee; that by this refusal, respondent had waived whatever right it might have had to insist on the fee and that, by causing her discharge under the existing circumstances, respondent had violated Sec. 8(b)(2) and (1)(a) of the Act. Upon reconsideration, the Board adhered to this view and concluded additionally that, even if payment of the reinstatement fee were a proper condition subsequent to Boness' good standing in the Union, she had satisfied the condition by her tender of the dues and reinstatement fee on November 7 before respondent had expelled her and before the company had acted on the demand for her discharge. If either of these determinations was correct, we must enforce the order.
Under Sec. 8(a)(3), an employer may not discharge an employee for nonmembership in a labor organization "if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Section 8(b)(2) provides that it is an unfair labor practice for a labor organization "to cause * * * an employer to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ...