Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
SWAIM, C.J.: This case is here on the National Labor Relations Board's petition to enforce its order issued against both respondents.
Respondent Die and Toolmakers Lodge 113, International Association of Machinists, A.F.L., is the sole bargaining representative for the employees of respondent Peerless Tool and Engineering Company. Section 2 of Article I of the collective bargaining agreement in effect between the Company and the Union provides that all employees who were on the date of the execution of the contract members of the Union shall remain members of the Union as a condition of employment and that all new employees shall within thirty-one days become and then remain members of the Union as a condition of employment. A rule of the Union provides that any member who fails to pay his dues for a period of three months automatically loses his membership.
Early in 1953 and Union sent the following letter to all of its members:
"There will be a voluntary donation to support our striking Brothers in the following amounts:
$10.00 weekly for those Journeymen working in shops with $2.73 contracts.
"$5.00 weekly for all others.
"The first of such assessments is due May 22, 1953.
"You will receive a receipt for your donation and the amount will be recorded on the assessment pages of your dues book.
"This assessment will run as long as it is necessary to win our fight.
"Die & Tool Makers Lodge No. 113 I.A. of M.
Even though the employees of Perrless Tool and Engineering Company were not on strike they were required to contribute their weekly "donations" to the Unions strike fund.
In February of 1954 the Company notified the Union that it was going to have to lay off several employees and, pursuant to the collective bargaining agreement, listed those who were lowest in seniority as the men to be discharged. Thereupon the Union furnished the Company with a list of seven employees who were more than three months delinquent in their dues and requested that the Company discharge these named employees rather than lay off Union members in good standing who had less seniority. The Company then discharged five of the seven men named by the Union.
Two of the men discharged filed a charge with the Board claiming that the Union refused to accept their dues because they would not pay the "donation," and that the Company knew this when it fired them. The General Counsel of the Board filed a consolidated complaint accusing both the Union and the Company of unfair labor practices.
In its decision and order the Board concluded that the Union had violated Sections 8(b)(2) and 8(b)(1)(A) of the Labor Management Relations Act, 29 U.S.C.A. Secs. 158(b)(2) and 158(b)(1)(A), by causing the Company to discharge the five named employees for reasons other than failure to tender union dues; and that than failure to tender union dues; and that 8(b)(1)(A) by threatening that it would not process grievances for employees who refused to pay the "donation." The Board found that the Company had violated Section 8(a)(3) and (1), 29 U.S.C.A. Secs. 158(a)(3) and (1), by discriminating in regard to tenure of employment of five named employees. In this enforcement proceeding each respondent has vigorously contested the portion of the decision and order that is directed against it.
The Section 8(b)(2) Violation.
The Union admits that it violated Section 8(b)(2) if it refused a valid tender of dues thereby causing an employee's discharge for reasons other than nonpayment of dues. The Board argues that this is exactly what the Union did, so the principal question on review is ...