Before HASTIE, FORMAN and SMITH, Circuit Judges.
FORMAN, C.J.: The National Labor Relations Board (Board) has petitioned for enforcement of its order, issued May 24, 1961, against Food Fair Stores, Inc. (Company) and Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO (Union).*fn1
A brief statement of facts is as follows: The Company is comprised of a chain of retail stores or supermarkets in various states, including New Jersey, where its sales exceed $3,000,000 and the inflow of products from out of the state exceeds $50,000 per year. The Union includes in its membership employees in the 58 stores of the Company in Northern New Jersey, known as Branch 6. The charging parties are sisters, Florence and Elizabeth Brooks, who are "front end clerks" at the Company's Bergenfield and Teaneck stores respectively. All parties concede that a collective bargaining contract was in effect between the Company and the Union in which Union membership was a condition of employment and that it provided for a checkoff of union dues, although the contract, itself, was never produced in evidence.
On April 6, 1959, the Union met and, by a majority of its members present, voted a special assessment amounting to $15.00 to be paid by every member to aid the striking employees of another chain of food stores. Most of the employees paid the assessment directly to the Union. Shortly thereafter the Union requested the Company to checkoff the assessment from the wages of those who had not paid. At first the Company declined, taking the position that it was not a legitimate subject of checkoff under the contract with the Union. The Union threatened to compel arbitration of the issue. After several months of negotiations and upon the advice of its counsel that the demand for the checkoff was proper, the Company agreed. Its acquiescence was evidenced by a notification to the managers of each store from John Borland, Jr., the personnel manager of Branch 6, stating that the Company had agreed to the checkoff and that arrangements therefor would be made in the near future.*fn2
The Trial Examiner found that within the period of six months prior to the filing of the complaint the officers of the Union threatened individual employees of the two stores aforementioned with discharge if they did not pay the assessment. He also found that the memorandum of the personnel manager, Mr. Borland, was a "pervasive" threat to the employees of all 58 stores and that he and the managers of the Bergenfield and Teaneck stores also informed certain employees that failure to pay the assessment would result in the loss of their jobs. Eleven employees in the Bergenfield store and ten in Teaneck were delinquent in paying any or all of the assessment on January 15, 1960. On January 19 and 23, 1960, collections were made in these respective stores from all.*fn2a Accordingly the Examiner concluded that:
"1. By threatening employees with discharge if they did not pay the strike assessment and by exacting payment thereof pursuant thereto, the Employer discriminated against employees in violation of Section 8(a)(3) and interfered with, restrained and coerced employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the Act.
"2. By causing and attempting to cause the Employer to discriminate against employees in the manner aforesaid, the Union engaged and is engaging in an unfair labor practice in violation of Section 8(b) (2) of the Act. Thereby, and also by itself threatening employees with discharge if they did not pay the assessment, the Union restrained and coerced employees in the exercise of their statutory rights, thus engaging in an unfair labor practice within the meaning of Section 8(b)(1) (A) of the Act."*fn3
The Examiner also held that the circumstances surrounding the receipt of the memorandum of November 3, 1959 at the Bergenfield and Teaneck stores were typical of the conditions prevailing in all of the other stores. He recommended that all of the employees of Branch 6 who paid part or all of the assessment after the latter date should be jointly and severally reimbursed by the Company and the Union for such payments. He also recommended that the Company and the Union implement the decision with advice to the employees that failure to pay the assessment will not be the cause of discharge and other pertinent information to be accomplished by the posting of the usual notices.
Two of the three members of the National Labor Relations Board panel adopted the Examiner's findings, conclusions and recommendations with only slight modification. The third member dissented.
The legal issue revolves around the question of whether the assessment in this case is to be construed as within the term "periodic dues" as used in Sections 8(a)(3) and 8(b)(2) of the National Labor Relations Act (Act). Section 8(a)(3) makes it an unfair labor practice for an employer in a union shop to discriminate against an employee for nonmembership in a labor organization "(B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employees to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . . ."
Section 8(b)(2) makes it an unfair labor practice for a union to attempt to cause "an employer to discriminate against an employee in violation of subsection (a)(3) . . . on some ground other than his failure to tender the periodic dues and initiation fees uniformly required. . . ."
The Board contends that the assessment is not within the definition of "periodic dues", ergo the alleged threats to have employees discharged are violations of the above sections.
Both the Union and the Company take exception to the fact finding of the Examiner and the Board that threats of discharge were made by their officials to the employees.
The Examiner found that Mr. Borland, the personnel manager, conveyed to employees the information that once the Company decided that the assessment was a proper subject of checkoff it would have no alternative but to discharge the employees for failure to pay the assessment if requested by the Union and that his notification of November 3, 1959 was a declaration that the Company would apply the same sanction of discharge as it would to nonpayment of dues.
Mr. Borland testified that he "believed" that Richard L. Johnston, the Acting Secretary-Treasurer of the Union told him in October or November 1959 that he would request the discharge of employees who did not pay the assessment.
The Examiner concluded that the Union caused the Company to make the "threat" which he found inherent in the memorandum of November 3, 1959, and that this alone would support the charge that both the Union and the Company had violated the Act as charged in the complaint. However, he took cognizance of other testimony implicating officials of the Company and the Union in making specific threats to some employees who did not pay the assessment.
The Misses Brooks testified that Mr. Johnston stated to them in April of 1959*fn4 that if they did not pay the assessment they would lose their jobs. In addition Florence Brooks stated that Mr. Johnston repeated the threat to her in June or July of 1959. Florence Falasca, an employee of the Bergenfield store, gave similar testimony concerning Mr. Johnston without being specific as to the date of their conversation.
Gene Mulvihill, Business Agent and First Vice President of the Union, was taxed with similarly informing the following employees: Florence Brooks in June or July 1959 and January 1960, Elizabeth Brooks in August 1959, John Harley of the Bergenfield store in January 1960, and Florence Falasca, also of the Bergenfield store, in November of 1959.
Frank De Vito, Acting President and Business Agent of the Union, also was said to have insisted upon payment of the assessment under pain of discharge to Florence Brooks in January 1960 and Florence Falasca in November 1959.
The following officials of the Company were implicated in conveying information directly to employees to the effect that if they did not pay the assessment they would lose their jobs. In the case of Mr. Borland, Elizabeth Brooks testified that shortly after he had sent out his letter of November 3rd to the store managers, she had a conversation with him in which he said: ". . . he would have to go along with the agreement with the union, that he would have to take the money out of our pay or we would be discharged." The same Elizabeth Brooks testified that William Sisti, the manager of the Teaneck store, actually took the amount of the assessment, $15.00, out of her pay envelope on January 19, 1960 over her objection, with the statement that rather than see her lose her job he was taking the assessment out of her pay. Mr. Sisti substantially corroborated Miss Brooks. Irving Ring, manager of the Bergenfield store, was said by Florence Brooks to have acted similarly to Mr. Sisti, taking the amount of the assessment from her pay envelope after telling her that he was not going to see her lose her job.She also testified that she witnessed Mr. Ring lend Paul Wright, another employee, $15 to pay the assessment to save his job. Paul Wright corroborated her.
The Union charged that there was no proof that it ever requested the Company to discharge a single employee for failure to pay the strike assessment. It submits that the evidence showed no more than a request by the Union to checkoff the assessment and that the only remedy it sought for failure to do so was to request the submission of the matter to arbitration for the purpose of determining the Company's obligation relative to assessments.
True it is that there is no evidence that the Union requested the Company to discharge any employee for non-payment of the assessment. Indeed there was no reason for such a request because the Company acquiesced to the checkoff.But there can be little doubt that in pressing Mr. Borland to honor a requested checkoff of the assessment Mr. Johnston informed him that he would request the discharge of employees who did not pay it.
The Union also ruged that an analysis of the testimony of the employees who stated that they had been threatened by the respective Union officials discloses that such testimony was inconsistent and lacked substantiality and reliability to support the Board's findings and that this was not in accordance with the preponderance of the evidence.
The Company argued that there was no substantial evidence in Mr. Borland's testimony on which to base a conclusion that the checkoff by the Company of the assessment implied "possible sanctions of discharge for non-compliance."
The Board had before it Mr. Borland's admission*fn5 that he had informed employees that once the Company decided that the checkoff of the assessment was proper he would have no other alternative but to discharge the employees if they failed to pay. It also had the testimony of Elizabeth Brooks that Mr. Borland told her, sometime after he had notified the store managers on November 3, 1959, to checkoff the assessment, that he would be obliged to go along with the agreement with the Union and take the money out of the pay of the employees or they would be discharged. In the light of this evidence the Company's objection that Mr. Borland's testimony laid no basis for the Board's conclusion that the checkoff by the Company implied the sanction of discharge for non-compliance is without merit. ...