Before SCHNACKENBERG and KNOCH, Circuit Judges and MERCER, District Judge.
These are companion cases growing out of a consolidated proceeding before the National Labor Relations Board. In No. 12932, Producers Transport, Inc., hereinafter referred to as the Company, has filed a petition to review and set aside an order of the Board finding that the Company had violated section 8(a)(3) and (1) of the National Labor Relations Act, as amended, in discharging its employee, one Robert Pool. No. 12984 arises upon a petition by the Board for enforcement of its order against Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, which was predicated upon a finding by the Board that the Union had violated Section 8(b)(2) and (1)(a) of the Act by causing the Company to discriminate against the said Robert Pool by discharging him from employment.
The Company is a common carrier engaged in transportation of goods in commerce. At all times pertinent to this litigation, the Union was the bargaining agent for the Company's employees, and, was a signatory with the Company of a collective bargaining agreement which contained a valid union shop and maintenance of membership clause.
Robert Pool was employed by the Company as a driver from and after November, 1953. Upon beginning employment with the Company and becoming a member of the Union, Pool executed a written checkoff authorization, authorizing the Company to deduct his Union dues from his paychecks upon the Union's request. Thereafter, dues were deducted from Pool's paychecks to and including those due for September, 1957.
The checkoff was made by the Company on the basis of a monthly checkoff list presented by the Union, on which was a notation beside each employee's name either of the amount to be deducted as dues or of the fact that the employee was not on checkoff.The lists submitted to the Company for September 1957,*fn1 and subsequent months contained a notation that Pool was not on checkoff. Thereafter, the Company made no deduction from Pool's wages for Union dues.
The Union's constitution and rules provided that a member was automatically suspended when he became 3 months in arrears in his dues payments. A member so suspended could obtain reinstatement by paying a $10.00 reinstatement fee and all back dues. Since Pool's dues were not deducted from his wages, and since he made no dues payments for October, November, and December, 1957, an entry was made on Pool's ledger card by the dues clerk of the Union on December 10 that he was suspended from the Union for non-payment of dues.
In the latter part of November, 1957, Pool asked the Union's shop steward how he could get back on checkoff. The steward stated that he would see about it, and thereafter, on January 2, 1958, discussed Pool's situation with the Union's business agent. The agent told the steward that he would find out what Pool owed and in the meantime the steward should collect a "couple of months anyhow." On January 4th, Pool gave the steward a check for $12.00. That check was delivered to the Union and credited by the dues clerk to payment of the $10.00 reinstatement fee and the balance was applied to dues.
In the meantime, Pool had not paid his January, 1958, dues, and the dues clerk, on January 10th, reported him more than 3 months delinquent. The president of the Union then sent word to Pool to come to the Union Hall and see him to straighten out the dues situation and take care of his reinstatement. Pool did not do so.
Thereafter, on January 15, 1958, written notice was given to the Company by the president of the Union that Pool had been suspended from the Union for non-payment of dues and that the Union demanded his discharge in compliance with the Union security clause. Shortly thereafter the Company gave Pool written notice of discharge.
Congress, as an exception to the strict provision of the Act that it is unlawful to discharge an employee for non-membership in a labor organization, has authorized an employer and a union representing a majority of his employees to enter into a union security agreement which makes union membership a condition of employment. In enforcing such a security agreement, a union may not cause the discharge of an employee for any reason other than his failure to tender the initiation fees and periodic dues uniformly required of members of the union. 29 U.S.C. 158 (b)(2), Radio Officers' Union v. N.L.R.B ., 347 U.S. 17, 41. As we indicated in Union Starch & Refining Co. v. N.L.R.B ., 7 Cir., 186 F.2d 1008, 1012-1013, a union may condition admission to membership in its organization upon any basis which it chooses, but it cannot enforce any such condition of membership other than the payment of dues by requiring the discharge of an employee.
The instant cases arise within the framework of those announced principles, and the issue as to the propriety of the Board's order in each must be judged by that standard.
The ultimate issue presented in this proceeding is whether the Board properly found that the Union, in causing Pool's discharge by the Company, ...