Before HAND, MEDINA and WATERMAN, Circuit Judges.
This case is before us upon the petition of the International Association of Machinists, AFL-CIO, and Lodge 1021 of that union, pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board issued against the petitioners based upon a finding of unfair labor practices committed by them. The Board's decision and order are reported at 116 N.L.R.B.No. 92 (1956). We have jurisdiction under the Act because the conduct found by the Board to constitute unfair labor practices occurred in New Britain, Connecticut, within this judicial circuit.
In 1954 the New Britain Machine Company and the petitioners entered into a collective bargaining agreement, effective for a period of two years, covering a production and maintenance unit. The agreement contained a union security provision requiring employees who were union members to "maintain their membership in the Union in good standing" during the life of the agreement as a condition of their continued employment. A member's failure to maintain such a status would entitle the union to request his discharge by the company. The maintenance of membership provision contained the following proviso:
"* * * provided, however, there shall be during the period of this contract, annual escape periods from March 7 to March 22 inclusive, within which escape periods any Union member may resign from the Union and be relieved of the obligations of maintenance of membership by written notice to both the Union and the Company indicating such resignation, and such notice shall also operate as a simultaneous revocation of the employee's checkoff authorization under 4.3."
Edward Batogowski was an employee of the New Britain Machine Company and a union member who had signed a checkoff authorization. By letter dated March 21, 1955, Batogowski notified the Company that he was resigning that day from the Union. The Company removed Batogowski's name from the checkoff list. It then, in April, 1955, sent to Lodge 1021 a list of those employees who had canceled their checkoff authorizations, including Batogowski. Batogowski made no dues payments to the union after his letter to the Company.
On May 17, 1955, the recording secretary of Lodge 1021 wrote Mr. Morrow, a vice-president of the Company in charge of industrial relations, informing him that the union had "received no official notification" of resigning and checkoff cancellation from Batogowski or from John Stochmal, another employee whose name had been placed on the list sent to the union in April. The letter of the recording secretary then directed the Company's attention to the requirement in the bargaining agreement that both the Union and the Company must receive written notice of a union member's resignation during an escape period in order for that resignation to be effective. On May 26 the Company official replied, stating that the Company had "investigated these two cases and is satisfied that the notices to the Union were properly placed in mail channels to the Union," and asserted that proper mailing of the notice by the employee was sufficient compliance with the requirements of the escape period provision.
The collective bargaining agreement contained provisions for a grievance procedure, with ultimate resort to arbitration of any unsettled issues. Sometime during May 1955, a grievance meeting was held. At the hearing before the Trial Examiner of the NLRB the union representative testified that at this meeting he told Morrow that the union had not received notices from the two employees, and that under the union constitution these employees would cease to be "members in good standing" after the lapse of a 90-day grace period measured from March 1, 1955, the date at which the employees' obligation to tender the first unpaid installment of dues arose. The union representative further testified that at this May meeting he stated that if the two employees paid their back dues, the union would consider the matter closed. The Company adhered at that time, however, to its interpretation of the collective bargaining agreement and its contention that the two employees had sufficiently complied with the resignation provisions. Unsatisfied with this position, the union filed a formal grievance with the Company on June 16, 1955, at which time neither Batogowski nor Stochmal had tendered any back dues. It was the union claim that the attempted resignations were ineffective and therefore the two employees were no longer "members in good standing." The grievance was considered by a Company official, who after a further examination upheld the Company's original position. The grievance remained unresolved, however, and the parties resorted to arbitration.
Sometime after June 20 but before the parties resorted to arbitration in August, Stochmal tendered his back dues, which were accepted by the union, and thus that employee was restored to the status of a "member in good standing." There was evidence at the hearing held by the Trial Examiner of the NLRB tending to show that sometime prior to the arbitration hearing the union requested that the Company discharge Batogowski because he was no longer a "member in good standing."
The issue originally submitted for arbitration was framed as follows: "Did Employee Edward Batogowski resign from the Union membership and revoke his checkoff authorization under Article IV of the Contract?" The parties later agreed to add the following question to the statement of the issue: "And if not, (to) what remedy, if any is the Union entitled under the Contract?"
The arbitrators held their hearing in the latter part of August and handed down their decision on November 23, 1955.This decision, written by the "third arbitrator" and concurred in by the arbitrator selected by the union, stated that Batogowski's attempted resignation was ineffective because they found that no notice thereof was received by the union.The award of the arbitrators reads as follows:
"Employee Edward Batogowski did not resign from the Union and revoke his checkoff authorization in accordance with Article IV of the Contract.
"The Union is entitled under the Contract to require the discharge of Edward Batogowski."
Morrow learned of the award on the same day it was made. He immediately summoned Batogowski to the office, told him of the award, and suggested that he pay his back dues.Batogowski sent Lodge 1021 a note on that very day - November 23 - stating that he was enclosing a money order for $20 "representing arrears in dues as of today. If [there is] any monetary difference as to the accuracy of my calculation, please let me know promptly, as it is my desire to pay my ...