# The International Association of MacHinists Afl-Cio, and Lodge 1021, International Association of MacHinists Afl-Cio v. National Labor Relations Board

> Court of Appeals for the Second Circuit · August 2, 1957 · 247 F.2d 414

URL: https://www.frixlaw.com/law-library/cases/9445777

## Case

- **Full name:** The INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, and Lodge 1021, International Association of MacHinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** August 2, 1957
- **Citations:** 247 F.2d 414; 40 L.R.R.M. (BNA) 2497; 1957 U.S. App. LEXIS 4546
- **Precedential status:** Published
- **Opinion:** Dissent by Hand
- **Judges:** Hand, Medina, Waterman
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445777

## Opinion text

L. HAND, Circuit Judge
(dissenting).
I do not think that the question is here involved whether it is an unfair labor practice for a union to demand the discharge of an employee because he has defaulted in the payment of his dues although he has redeemed his default before the employer actually discharges him. Arguendo, I will assume, without expressing any opinion, that such a demand is not an unfair labor practice. In the case at bar I also assume that the union demanded Batogowski’s discharge before November 23, 1955, the day when the arbitration award was made and when he redeemed his default. Nevertheless, the union was guilty of a violation of § 8(b) (2) if the strike threat was an attempt' — and, as it proved, a successful attempt — to cause an employer “to discriminate against an employee with respect to whom membership * has been * * * terminated on some ground other than his failure to tender the periodic dues * * * ” That in turn depends upon whether the employer had “reasonable grounds for believing *422 that membership was * * * terminated for reasons other than the failure of the employee to tender the periodic dues * * * ” My brothers hold that the evidence requires some finding by the Board whether the demand for Batogowski’s discharge may not in some degree have been a reprisal for his insistence that he had given notice of resignation. To this I agree and I should concur in their opinion — as indeed pro tanto I do — were it not that I think for other reasons that the union’s demand was for a violation by the employer of the second proviso of § 8(a) (3).
■ It may be that in fact the union’s only motive for terminating Batogowski’s employment was because of his failure to pay his dues — that, as I have just said, remains an issue to be decided. If the words “terminated for reasons other than” etc. are to be confined to the union’s motives I should agree that that was the only issue. So to confine them does not, however, appear to me necessary, or indeed their right interpretation. No one would argue that, if the employee did not in fact owe the dues, the union’s demand, although made in entire good faith, would require the employer to “discriminate” against him. The dues must be valid claims, and when the proviso declared that the employer should be free to discriminate if he had “reasonable grounds for believing that membership was * * * terminated for reasons other than the failure * * * to tender the periodic dues,” the right interpretation seems to me to be that his grounds for believing that the employee owes the money are among the factors that should determine his belief about the reasons for the termination. In the case at bar there was nothing to cause the employer to suspect that Batogowski had not mailed the notice, or for that matter that mailing alone was not enough. To subject it to a strike because it waited until that issue was determined by an arbitration, to which the union had itself consented, appears to me unduly and most unfairly to circumscribe the latitude that the proviso granted it. For that reason I would affirm the order.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445777. Public record. Not legal advice.