Opinion · Court of Appeals for the Second Circuit
Colonie Fibre Co. v. National Labor Relations Board
163 F.2d 65
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1947-07-14
- Topic
- general
How later courts describe this case
- discharge of employes through retroactive application of maintenance of membership provision unlawful
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UpLaw has not yet analyzed Colonie Fibre Co. v. National Labor Relations Board. The absence of a flag is not a finding that it is good law.
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COLONIE FIBRE CO. v. NATIONAL LABOR REL. BOARD,163 F.2d 65(2nd Cir. 1947)
COLONIE FIBRE CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.
No. 193, Docket 20341.
Circuit Court of Appeals, Second Circuit.
July 14, 1947.
Enforcement granted; order modified.
Pursuant to a complaint, a hearing was held before a Board Examiner. At that hearing, substantial evidence of the following was received:
As of March 14, 1944, petitioner (the company) entered into an agreement with the United Textile Workers of America, Local No. 446, American Federation of Labor (for convenience called the A.F. of L.), recognizing it as exclusive bargaining representative for a specified unit of the company's employees and agreeing to certain wage rates. The agreement contained, in addition, a maintenance-of-membership provision requiring, as a condition of employment, that all employees who were members of the A.F. of L. fifteen days after August 28, 1944, were to remain members in good standing for the duration of the contract. The termination clause of the agreement read as follows: "This contract and scale of wage rates attached hereto, shall (unless changed by mutual consent), be in effect to March 14, 1945. If either party wishes to propose a new agreement, it shall notify the other party to the contract of its wishes at least sixty (60) days prior to March 14, 1945, and can only be changed by written notice by onePage 66of the parties to the other at least sixty (60) days prior to March 14, 1945, of any succeeding year."
On January 8, 1945, the A.F. of L. notified the company that it desired to negotiate a new agreement. The company did not, however, enter into any negotiations with the A.F. of L. at this time for the reason that, on January 11, 1945, a C.I.O. union filed with the Board a petition for investigation and certification of representatives, which gave rise to a representation proceeding in which the A.F. of L. intervened. On May 11, 1945, the Board conducted an election among the company's employees to determine whether they wished to be represented by the A.F. of L. or the C.I.O. A majority of the employees voted in favor of representation by the A.F. of L., and the Board, accordingly, on May 19, 1945, certified it as exclusive bargaining representative for the employees in the appropriate unit. On May 23, 1945, the company and the A.F. of L. entered into a new contract, dated March 14, 1945. The new agreement contained the following maintenance-of-membership provision: "All employees who, Fifteen (15) days after August 28, 1944, are members of the Union in good standing in accordance with the constitution and by-laws of the Union, and all Employees who thereafter become members, shall as a condition of employment remain members of the Union in good standing for the duration of this contract."
Omer Blais and Charles Blair, Sr., were first employed by the company in April 1943. Both joined the A.F. of L. in 1943 and remained members until early 1945. In January 1945, Blais became the leader of a group of the company's employees who sought to organize under a C.I.O. union. At the same time, Blais and Blair joined the C.I.O. and ceased paying dues to the A.F. of L. It was as a result of their efforts that the C.I.O. filed its petition for investigation and certification of representatives in January 1945. Blais and Blair actively and openly identified themselves with the C.I.O. In March, when the Board held a hearing on the C.I.O.'s petition, Blais testified as a witness for the C.I.O. Throughout the election campaign, both men wore C.I.O. buttons while at work, and Blais solicited members for the C.I.O. At the election, Blair acted as an observer for the C.I.O.
About a week after the election, Corbett, business agent for the A.F. of L., and several other union officials complained to the company that Blais and Blair had been "causing trouble in the shop" and were "disturbing the workers and the members" and requested that they be stopped. The company's plant superintendent, to whom the complaint was made, promised that he would "correct" the situation. On May 23, when the A.F. of L. and the company met to execute the 1945 contract, the A.F. of L. representatives openly demanded, for the first time, that Blais and Blair be discharged. The A.F. of L. representatives were referred to the company's attorney, of whom they demanded, about a week later, that the two men be discharged for non-membership in the A.F. of L., pursuant to the terms of the new 1945 contract. He requested evidence that Blair and Blais were "members of the A.F. of L. local prior to the execution of this contract, and that after hearing it was voted that they were no longer members in good standing."
On June 5, the A.F. of L. notified Blais that it would hold a hearing on charges that he had engaged in "conduct unbecoming a Union member to the extent of failure to maintain dues payments for an extended period of time and activity in behalf of a dual Union." Blais replied by letter, on June 6, stating that he was not then, and had not been for some time, a member of the A.F. of L. On June 6, during a work stoppage among respondent's employees in purported protest against the continued employment of Blais and Blair, the A.F. of L. again demanded that the company discharge the two men under the maintenance-of-membership provision of the new 1945 contract because of their activities on behalf of the C.I.O. and their failure to pay dues to the A.F. of L.
On June 11, the union sent the company a letter reading as follows: "On Sunday, June 10, 1945, after all due process afforded Omer Blais, Local No. 446 U.T.W.A. — A.F. of L. decided that the said Omer Blais was no longer a member in good standing of the Organization and therefore shouldPage 67be removed from the employ of the Colonie Fibre Company, Inc., in accordance with the present Union Agreement and its provisions regarding those employees of the Company who were members in good standing of the Union fifteen days after August 28, 1944. The Executive Board and the Membership of Local No. 446 have therefore authorized this written request for the termination of the Company's employment of Omer Blais and upon presentation of this request also expect, due to all evidence and circumstances taken into consideration, final and conclusive compliance by the Employer." The company discharged Blais on June 12. Blair was discharged on June 20, after the company received a similar letter, of June 18, from the union relating to him.
The Examiner file an Intermediate Report in which he found that the company knew that the A.F. of L.'s demands for the discharges were based in part on the men's union activity on behalf of C.I.O. during a period when there was no contract with the A.F. of L. union. The Board, while agreeing with this finding, rested its decision on another ground. It said in part:
"We find that this clause in the contract required that on the date of its execution, as a condition of further employment, all employees who were members of the AFL 15 days after August 28, 1944, must have maintained membership in the AFL for a period starting 8½ months prior to May 23, 1945.1It included, therefore, a period of over 2 months during which no contract was in effect between the respondent and the AFL and subjected to the penalty of discharge those who had not lived up to its requirements during that period. The validity of such a contractual provision can be upheld only if it falls within the protection of the proviso to Section 8(3) of the Act [29 U.S.C.A. § 158(3)].2That proviso, in sanctioning contracts which require membership in a union as a condition of employment, does not sanction contracts which requirepastmembership as such a condition. A construction permitting such a retroactive requirement would be inconsistent both with the terms of the Act and with the principle of free self-organization which the Act is designed to protect.
"The Act grants employees the right to self-organization and the right to membership or non-membership in labor organizations (Sections 1, 7, 8(1) and 8(3) [29 U.S.C.A. §§ 151, 157, 158(1, 3)]). The `precise nature and limits' of the exception to these rights contained in the proviso to Section 8(3) must be literally observed. N.L.R.B. v. Electric Vacuum Cleaner Co.,315 U.S. 685, 695 [62 S.Ct. 846, 86 L.Ed. 1120]. See also United States v. Dickson, 15 Pet. 141, 165 [10 L.Ed. 689]; Fleming v. Hawkeye Pearl Button Co. [8 Cir.],113 F.2d 52, 56; Thompson v. United States [8 Cir.], 258 F. 196, 201, certiorari denied 251 U.S. 553 [40 S.Ct. 57, 64 L.Ed. 411]. The proviso permits contracts which require union membershipduring their termof all employees including those who have not joined the contracting union prior to execution of the contract. But to construe the proviso as also permitting contractsPage 68which require membership in the past would bring about the very result condemned by the Supreme Court in Wallace Corporation v. N.L.R.B., 323 U.S. [248], 251 [65 S.Ct. 238, 242, 89 L.Ed. 216], affirming [4 Cir.],141 F.2d 87, enforcing 50 N.L.R.B. 138. The burden of the Supreme Court's decision in that case was that since the Act `was designed to wipe out such discrimination in industrial relations,' the closed-shop proviso could not be used to penalize employees for not having belonged to the victorious union at a time when they were within their rights in not belonging (323 U.S. at pages 255, 256 [65 S.Ct. at pages 241, 242, 89 L.Ed. 216]).
"It would make no difference even if we were to assume (1) that the contract gave Blais and Blair the opportunity to remain employees by paying up their past dues after its execution, or (2) that, whether or not the contract so provided, Blais and Blair were given such opportunity. Either assumption would serve only to confirm the fact that the contract required past in addition to present membership. Not only a reasonable construction of the proviso to Section 8(3), but also effectuation of the policies of the Act, dictates the result we reach. Approval of a contract which made it possible for the contracting union to require payment of past dues as a condition of future employment would have a seriously detrimental effect upon freedom of organization. The period from March 14, 1945, to May 23, 1945, to which this contract would apply, was one during which Blais and Blair and all other employees of the respondent were free to exercise without restraint the right to select and change representatives and the right to be or refrain from being members of any union. This freedom would be under substantial restraint if employees knew that they would have to pay, in a lump sum, dues which they were free to refrain from paying currently if the union from which they withheld support was eventually chosen. Legislation of this practice would provide a device for effectively constraining those who have not remained members of the dominant union at a time when they are under no obligation to do so.3In all cases where it appeared likely, or even possible, that a maintenance-of-membership or closed-shop contract might follow the selection of a representative, the employees would be impelled to speculate as to which organization would ultimately win the support of the majority in order to avoid the possibility of being faced with the requirement of paying a large sum in back dues. Hence in actual practice the employee's right to support and select the bargaining representative he wanted would largely be reduced to the right to guess which of two or more competing unions would ultimately be chosen by the majority. Thus, approval of the contract before us would substantially impair freedom of choice at a time when the statute requires such freedom. To permit this impairment would make it difficult for advocates of a change in representation to present their case to their fellow employees.
"We conclude that the maintenance-of-membership clause of the 1945 contract, being retroactive in effect to 15 days after August 28, 1944, is not within the protection of the proviso to Section 8(3) of the Act and is invalid. Since Blais and Blair were discharged pursuant to this clause because they were not members in good standing with the AFL, their discharges were discriminatory. We find that by discharging Blais and Blair under the circumstances hereinabove set forth, the respondent discriminated against them in regard to the hire and tenure of their employment, discouraged membership in the C.I.O., encouraged membership in the AFL, and interfered with, restrained, and coerced itsPage 69employees in the exercise of the rights guaranteed in Section 7 of the Act.4
The Board entered an order which directed the company to cease giving effect to the maintenance-of-membership provision "for the period from 15 days after August 28, 1944, to May 23, 1945, for the purpose of discharging or refusing to reinstate any of its employees, or for the purpose of in any manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment." The order also required the company to offer Blais and Blair full reinstatement, and to pay each of them for the loss suffered by reason of his discharge.
Blais, at the Board hearing, testified that he did not desire to be reinstated. At that hearing, there was admitted in evidence a letter of September 29, 1945 from the company to the Board saying: "In the interim period between the expiration on March 14, 1945, of the contract between the company and the United Textile Workers of America and May 23, 1945, the date of the new contract, no extension of agreement existed either orally or in writing."
The company has petitioned this court to set aside the order; the Board has asked for enforcement of the order.
Gerhard P. Van Arkel, Morris P. Glushien, A. Norman Somers, Ida Klaus and Robert E. Mullin, all of Washington, D.C., for respondent.
Before CHASE, CLARK, and FRANK, Circuit Judges.
It might be argued that the agreement could be interpreted thus: One who was a union member either fifteen days after August 28, 1944, or thereafter, and who later ceased to be, must become a union member shortly after the execution of the new agreement (i.e., May 23, 1945) and remain such for the life of that agreement. Such a provision would be less onerous than the conventional and valid closed-shop clause. But the company does not contend for such a construction. In its brief, it says that the agreement required "continued membership by those who once voluntarily joined." Moreover, we think that the conduct of the union and the company renders not unreasonable the Board's interpretation. We refer to these facts: (1) The union's demand for the discharges was first made on the very day the new agreement was executed. (2) Referred at that time to the company's lawyer, the union, about a week later, demanded the discharges pursuant to the maintenance-of-membership clause; the lawyer then informed the union that it would comply with that request if given evidence that these men were members of the union "prior toPage 70the execution" of the new contract, and that the union, after a hearing, "voted that they were no longer members in good standing." (3) Subsequently, Blais was notified by the union that it would press for his discharge if, after a union hearing on June 10, 1945, the union found him guilty of the charge of "failure to maintain dues payments for an extended period of time." (4) On June 11, the union wrote the company that it had decided that Blais was no longer a member of the union in good standing "and should be removed from the employ" of the company "in accordance with the present union agreement and its provisions regarding these employees of the company who were members in good standing of the Union fifteen days after August 28, 1944." On June 18, the union wrote the company a substantially similar letter concerning Blair. (5) The company discharged Blais and Blair on June 12 and June 20, respectively.
We think the evidence sufficiently supports the conclusion that these discharges were knowingly made by the company on the basis of the retroactive feature of the maintenance-of-membership provision. We agree with the Board that such a provision is not within § 8(3) of the Act. Wallace Corp. v. N.L.R.B.,323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; N.L.R.B. v. American White Cross Laboratories, Inc., 2 Cir.,160 F.2d 75.5
Before the Board's examiner, Blais testified that he did not wish to be reinstated. Accordingly, there should be stricken from the order, and from the notice to be posted, the requirement that the company offer him reinstatement. The order and the notice, however, may state that this offer would have been required if he had not stated that he would not accept it. With these modifications, we shall grant enforcement of the order.
- "This is a construction of the contract dictated both by its terms and by the obvious intent of the parties. The old contract had required employees covered by the maintenance-of-membership clause to remain members of the AFL until its expiration on March 14, 1945, by the terms of the new contract all such employees must have remained members not only during this period but from March 14, 1945, until May 23, 1945, as well, in order to meet the retroactive requirements of a new contract signed on the later date. Moreover, that the parties intended this provision to effect the immediate dismissal of those who had not maintained their membership during the interim period from March 14, 1945, to May 23, 1945, is borne out by the fact, among others, that on the very day of the contract's execution the AFL made its first demand for the discharge of Blais and Blair." ↩
- "This proviso states that nothing in the Act `shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made." ↩
- "Cf. International Association of Machinists, Tool and Die Makers Lodge No. 35 et al. v. N.L.R.B., [71 App. D.C. 175],110 F.2d 29, 43, affirmed311 U.S. 72[61 S.Ct. 83, 85 L.Ed. 50], in which the Court of Appeals stated, "The practice of antedating contracts may be legitimate or otherwise according to varying circumstances. Whatever its effect between the parties, rights of third parties should not be affected adversely, particularly when they involve interests so important and controversial as collective bargaining and the closed shop. To stamp with judicial approval a practice so questionable would invite evasion of the statute's intended protections.'" ↩
- "Although Blais and Blair did not pay dues in the AFL from January through March 1945, it is unnecessary to pass on the effect of such nonpayment, inasmuch as the original contract expired on March 14, 1945, and no demand was made during the effective period of this contract that these employees be discharged for failure to pay dues. Since the maintenance-of-membership provision of the 1945 contract was invalid, it is unnecessary for us to determine whether, subsequent to May 23, 1945, the respondent or the AFL afforded Blais and Blair an opportunity to establish themselves as members in good standing of the AFL." ↩
- Our opinion in the White Cross Laboratories case serves to answer certain contentions of the company here. ↩