Schnackenberg and Castle, Circuit Judges, and Grubb, District Judge.
Pursuant to § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C.A. § 151 et seq ., Journeymen Plasterers' Protective and Benevolent Society of Chicago, Local No. 5, hereinafter called the "Union," petitions this court to review and set aside an order of the National Labor Relations Board issued on February 10, 1964. The Board's decision and order are reported at 145 N.L.R.B. No. 152. The Board, by a three-member panel, adopted the substance of findings and conclusions of the trial examiner in the case that the Union had committed unfair labor practices in causing an employer discriminatorily to discharge an employee in violation of § 8(b)(2) and (1)(A) of the Act, Title 29 U.S.C.A. § 158(b)(2) and (1)(A). In its answer to the petition, the Board requests enforcement of its remedial order.
The record discloses that the employee, John J. Spinelli, had been an apprentice plasterer from 1931 to 1935, and a journeyman plasterer thereafter until 1952. During this time he was a member of the Union. He relinquished his membership in 1952 to become a plastering contractor, operating as the Spinelli Plastering Company. Spinelli, personally, and the company entered into bankruptcy in 1959. At this time the Spinelli Plastering Company owed the Union the amount of $1,187.15 which represented dues deducted from the wages and was listed as owing to the Union in the corporate bankruptcy schedules.
On August 18, 1961, Spinelli, by letter, applied for reinstatement of his membership in the Union and was thereafter invited to appear before its executive board on October 10, 1961. At this meeting Ellsworth McMasters, the Union's president, informed Spinelli that he would have to agree to pay the Union the sum of $1,187.15 as a condition to obtaining membership. On October 24, 1961, Spinelli, who had consulted with his attorney, signed a statement acknowledging an indebtedness in that amount to the Union and agreeing to discharge this obligation by payment to the Union of $5 for each day that he worked at the plastering trade, with $1 to be applied toward his initiation fee and $4 toward his indebtedness, until both amounts were paid in full. The constitution and by-laws of the Union provide that installment payments of the initiation fee may, in the discretion of the president, be paid at the rate of $4 per working day until paid in full.
When Spinelli inquired about his membership status in November, McMasters told him that he would have to make a down payment of $187 before he could go to work and that he would be charged an initiation fee of $250. The initiation fee on reinstatement of members having twenty-year membership when dropped is stated to be $125 in the Union's constitution and by-laws.
In January 1962, Spinelli informed McMasters that he had some job offers and was told that he could not work as a foreman or superintendent. On or about February 5, 1962, Spinelli began working for the John P. Phillips Plastering Company whose collective bargaining agreement with the Union included a union shop provision.
In February 1962, Spinelli's attorney arranged a meeting with the Union to clarify his membership status. Spinelli was again informed that he would have to make a down payment of $187. Spinelli's attorney offered to lend him this sum and in fact mailed the Union his personal check in the amount of $187.15. On February 16, 1962, Spinelli was informed by letter, written by the Union's attorney, that he would be granted membership as a journeyman plasterer when the initiation fee and the $1,000 balance on the debt had been paid in full. The Union's constitution and by-laws provide that applicants, paying their initiation fee on an installment basis, must make a deposit of at least twenty per cent of the fee, shall obtain a record of payment book from the Union office, and shall continue to make payments as agreed to weekly until the fee is paid in full when they shall be initiated. On lapse of payment over ninety days, payments already made on the initiation fee shall be forfeited.
McMasters learned of Spinelli's employment with Phillips at the end of February 1962. Early in April, Phillips received notice to appear before the executive board of the Union to answer charges of failing to report new men he had hired, in violation of the union security provision of Article III(c) of the Joint Agreement between the plastering contractors and the Union to which Phillips was a party. Spinelli was among the men Phillips had hired without notifying the Union. According to the Joint Agreement, notice of hiring is required so that the Union may advise the newly-hired employee of the union security provision and examine into his qualifications and experience as a journeyman plasterer.
Similar charges have on occasion been filed against other contractors. However, Phillips had never complied with the reporting requirement and had not previously been charged with this violation. McMasters knew of at least one instance in which Phillips had failed to report the hiring of some fifteen men.
On being notified that he was to appear before the Board on April 5, 1962, Phillips immediately hastened to the meeting. On this occasion he was informed that Spinelli did not have a permit to work as a journeyman, his permit having been forfeited for something on which Spinelli "did not follow through." He could not recall what Spinelli had failed to do. He was also told that as long as Spinelli did "leg work" for him he could keep him in his employ. After the meeting, Phillips told Spinelli that he was not to give instructions to the men. Phillips knew that since Spinelli could not be a journeyman plasterer, he could not work as a foreman or direct the activities of the plasterers.
Phillips had intended that Spinelli's duties would include half-time production work and the remainder in leg work, such as conveying Phillips' instructions to the men. The actual duties performed by Spinelli included driving a truck, distributing paychecks to the men, checking materials for jobs, keeping time records, hiring and discharging men on instructions from Phillips, and delivering Phillips' instructions to the men. He did no plastering and was paid a journeyman's wage.
Because of the infraction of the rules to which Phillips pleaded guilty before the Union, an outside steward was imposed on him for ninety working days. The steward, John Owens, began working for Phillips on April 15, 1962. Phillips had complaints concerning the quality of Owens' work and so informed McMasters. There were disputes between Owens and Spinelli concerning Spinelli's handling of paychecks for the men. The presence of Phillips and of McMasters was required at the scene of such an incident late in May 1962. McMasters found that Spinelli's conduct had been proper on these occasions. Following the latter incident, Phillips told Spinelli that he would have to discharge him. Spinelli's employment was terminated on June 8, 1962.
While working for Phillips, Spinelli had arranged for a weekly, not daily, deduction of $5 to be applied on the debt he assumed and on his initiation fee according to the allocation of his agreement with the Union. After eight such deductions were taken from his wages, Spinelli withdrew this money. No other deductions were withheld from his wages, and Spinelli made no other payments toward his debt or initiation fee.
After termination of Spinelli's employment, Phillips asked to be relieved of the steward because of slackness of work. His request was granted prior to the expiration of the ninety-day period originally imposed. Phillips rehired Owens about one month prior to the hearing of this case. The check for $187.15 sent to the Union by Spinelli's attorney was not cashed or deposited. It was returned to the ...