Ansley Radio Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1939

18 N.L.R.B. 1028 (N.L.R.B. 1939)

In the Matter of ANSLEY RADIO CORPORATION and LOCAL 1221 UNITED
ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. 0.
In the Matter of ANSLEY RADIO CORPORATION and UNITED ELECTRICAL
& RADIO WORKERS OF AMERICA
Cases Nos. C-535 and R-798, respectively .Decided December 29,
1939
Radio and Phonograph Manufacturing Industry-Interference, Restraint, and
Coercion-Discrimination: charges of, sustained : discharge of two employees for
attempting to induce fellow employees to change union affiliation ; valid closed-
shop contract no justification for discharge of employees advocating defection
from union with which contract is made, inasmuch as discharged employees were
members of contracting union when discharged and neither they nor contracting
union represented otherwise to employer; mere advocacy of change of affiliation
from union having closed-shop contract to rival union, not a representation to
employer of termination of membership in contracting union ; avoidance of
possible disruption of labor relations of employer under closed-shop contract
with contracting union, no justification for discharge of employees advocating
defection from union ; discharge of employee members of contracting union for
advocacy of change in affiliation among fellow employees, not justified by valid
closed-shop contract, even though such advocacy constitutes ground for expulsion
under constitution of contracting union ; discrimination found although em-
ployees allegedly discriminatorily discharged were discriminatorily laid off;
charges of, dismissed, two Board members disagreeing and third concurring in
dismissal: notification to employer by union newly formed by majority of
employees in unit covered by valid closed-shop contract, that employees had
formed such union, and request for bargaining by such union, sufficient basis
for assumption by employer that majority no longer were members of contracting
union ; failure of such notification to name individual employees immaterial ;
Madden: lay-off of all employees covered by valid closed-shop contract upon
formation of rival union by substantial majority in unit, no discriminatory
lock-out since purpose of employer was to avoid necessity for compliance with
imminent request of contracting union for displacement of such majority who
apparently ceased being members, and to permit such employees opportunity
to determine their course of action without having jobs filled by others; Smith:
lay-off of all employees in unit covered by valid closed-shop contract, upon
majority of employees designating rival union as their bargaining representa-
tive and indicating their withdrawal from contracting union, a discriminatory
lock-out irrespective of honest belief of employer that through lay-off employees
were given a respite against enforcement of closed-shop provision, inasmuch as
closed-shop provision was inoperative upon designation of new statutory repre-
sentative; charges of, dismissed, two Board members disagreeing and third
concurring in dismissal : announcement by employer that laid-off employees
covered by closed-shop contract will not be reinstated unless they are members
of contracting union, equivalent, if such condition is illegal, to a mass discharge
18 N. L. it. B., No. 108.
1028
ANS'LEY RADIO 'CORPO'RATION 1029
of or refusal to reinstate all such employees regardless of availability of positions
for immediate reinstatement; Madden: discharge of or refusal to reinstate
employees who voluntarily withdraw in a body from membership in contracting
union and designated a rival union as their bargaining representative, such
discharge or refusal being carried out by employer in pursuance of request of
contracting union for enforcement of closed-shop provision otherwise valid and
after notice to discharged employees of employer's intent to enforce, no unfair
labor practice in view of proviso clause of Section 8 (3), even though discharged
employees constituted a majority of employees in appropriate bargaining unit
covered by closed-shop provision; Smith: such discharge or refusal to reinstate,
an unfair labor practice not protected by proviso clause of Section 8 (3), since
closed-shop provision previously became inoperative upon designation of new
statutory representative by majority of employees in appropriate bargaining
unit covered by provision-Closed-shop Contract: provision of collective contract
that employer "agrees to call upon the Union for any help he may require," not
subject to construction as providing for a closed shop; doubtful that such pro-
vision may be construed as agreement by employer to require new employees to
be members of contracting union ; collective contract which fails to contain
provision for a closed shop will be treated by Board in unfair labor practice
proceeding as if reformed to include such term, it being shown by clear and
convincing proof that parties agreed upon term but through mutual mistake or
inadvertence omitted it from contract, and all employees affected having had
timely knowledge thereof ; closed-shop contract with union not established, main-
tained, or assisted by unfair labor practice, and constituting exclusive bargaining
representative of employees in appropriate bargaining unit covered by closed-shop
provision when made, valid under proviso clause of Section 8 (3) ; valid closed-
shop contract not voided because of unfair labor practices occurring subsequent
to making of contract and constituting assistance to contracting union, where
assistance did not materially affect self-organization or collective bargaining
beyond restraint inherent in operation of contract; closed-shop provision not
construed to require abstention by employees from talk and advocacy of change
in affiliation from contracting union to rival union as a condition of employment ;
letter of contracting union to employer interpreted as request for enforcement
of closed-shop provision of contract ; employer statement to committee repre-
senting employees who withdrew from union having closed-shop contract, inter-
preted as notice to employees of intent to enforce closed shop; discharge of
employee members of union having closed-shop contract, for advocacy of change
in affiliation, as not being justified by contract, see above ; lay-off of all employees
covered by closed-shop contract to prevent immediate displacement under closed-
shop provision of majority of employees who apparently changed their union
affiliation, as a discriminatory lock-out, see above-Closed-shop Contract-Effect
of Change of Affiliation of Majority Covered by: Madden : provision for closed
shop in collective contract validly made and of reasonable duration legally
enforcible at request of contracting union despite withdrawal from union of
substantial majority of employee members in appropriate bargaining unit covered
by closed-shop provision and their designation of another union as their statutory
representative ; Smith: provision for closed shop validly agreed upon becomes
inoperative upon designation of new statutory representative by majority of
employees in appropriate bargaining unit covered by closed-shop provision-
Evidence: presumption that union which obtained majority of votes in consent
election did not lose its majority designation in 6 days intervening between
election and making of closed-shop contract, although in that period employees
were removed from appropriate unit in which election was held in sufficient
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number to destroy majority representation if they were among those who voted
for union ; union signing collective contract is contracting party although a
different union is named as party in introductory paragraph of contract ; closed-
shop provision shows contracting union acted as exclusive representative despite
recital that it acted for itself and its members ; members of union having closed-
shop contract with their employer , participated with substantial majority of
fellow employees in group venture to set up competing labor organization through
which they requested collective bargaining , failed to register their lay -off with
contracting union in accordance with its requirements , and, in most cases, refused
to pay dues to contracting union, of all of which actions union necessarily would,
and did , have knowledge , thereby voluntarily withdrew from said contracting
union ; naming local chapter of national union in complaint when national
union was the organization involved , held immaterial variance-Unit Appro-
priate for Collective Bargaining : all production employees , excluding foremen,
truck drivers, shipping-department employees , outside salesmen , salesmen at
store, office employees , and engineers ; no controversy as to-Reinstatement
Ordered: of employees who, after their discriminatory discharge , withdrew from
union having valid closed -shop contract ; of employees who, in connection with
picketing , were involved in acts of violence not directed towards seizure of
respondent 's property , or resulting in -conviction of employees to be reinstated,
or constituting violation of any injunction-Back Pay: ordered-Remedial
Order: special form of; reinstatment subject to any valid closed-shop contract
outstanding-Investigation of Representatives : petition for dismissed.
Mr. Mark Lauter, for the Board.
Rogers, Ramsay & Hoge, by Mr. Clifton Cooper, of New York
City, for the respondent.
Mr. Frank Shreiner and Mr. David Scribner, of New York City, for
the United and the U. E. R. M. W.
Mr. William Karlin and Mr. Leo Greenfield, of New York City, and
Mr. Isaac Lobe Strauss, of Baltimore , Md., for the Brotherhood.
Mr. George Turitz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Local 1221 of United Electrical & Radio
Workers of America, herein called the United, since succeeded by
Local 1206 of United Electrical, Radio & Machine Workers of
America, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Second Region (New. York City)
issued a complaint dated October 15, 1937, against Ansley Radio
' The record shows that Local 1206 of United Electrical , Radio & Machine Workers of
America "now includes the Ansley plant." It is evident that Local 1206 is the successor
to Local 1221 chartered by United Electrical & Radio Workers of America. See footnote 2,
infra.
ANSLEY RADIO 'CORPORATION 1031
Corporation , New York City, herein called the respondent , alleging
that the respondent had engaged in and was engaging in certain
unfair labor practices affecting commerce, within the meaning of
Section 8 ( 1) and ( 3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. A copy of the com-
plaint, accompanied by notice of a hearing thereon to be held Novem-
ber 1 , 1937, together with a copy of the charge , was duly served upon
the respondent , upon United Electrical & Radio Workers of America,
now known as United Electrical Radio & Machine Workers of
America, herein called the U. E. R. M . W.,2 and upon Radio Factory
Workers' Union , Local B-1010 of the International Brotherhood of
Electrical Workers, herein called the Brotherhood ,3 a labor organiza-
tion claiming an interest in these proceedings . At the hearing the
complaint was amended in certain respects.
On October 5, 1937, the U. E. R. M. W. filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On October 11, 1937 , the Board,
acting pursuant to Section 9 (c) of the Act and Article II, Section 3,
Article III, Section 10 (c) (2 ), and Article II, Section 37 (b), of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice , and further ordered that for the purposes of hearing the
two cases be consolidated and that one record of the hearing be made.
Notice of a hearing on the petition to be held at the same time and
place as the hearing on the complaint was duly served upon the re-
spondent , upon the U. E. R. M. W., and upon the Brotherhood.
With respect to the unfair labor practices the complaint , as amended,
so far as here material , alleged in substance that : ( 1) on or about
May 24 , 1937, the respondent discharged James Garry and Morris
Bailey,4 two employees at its plant , because they favored and assisted
the United 5 and attempted to induce other employees to join that
'On or about November 1, 1937, the name of United Electrical & Radio Workers of
America was changed to United Electrical , Radio & Machine Workers of America.
s The Brotherhood also is referred to in the record as "Radio Union , Local B-1010 of
the International Brotherhood of Electrical Workers," "Local B-1010 of the International
Brotherhood of Electrical Workers," "International Brotherhood of Electrical Workers,"
" I. B. E. W.," "A. F. of L .," and other similar names.
* Referred to in the record at times as Baley.
The complaint, as amended , referred to the United as the labor organization thus
favored and assisted . The proof showed that the organization in question was the
U. E. R. M. W., which later authorized the formation of the United as a constituent local.
This variance is immaterial . See Matter of Panther-Panto Rubber Co., Inc. and United
Rubber Workers of America, Local No. 156, 11 N . L. R. B., 1261, 1270 ; Matter of Carrollton
Metal Products Company and Amalgamated Association of Iron, Steel , & Tin Workers
of North America, Local No. 1571 , 6 N. L. R . B. 569, 576.
283029-41-vol. 18-66
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization and to disassociate themselves from International
Brotherhood of Electrical Workers, a labor organization; (2) on or
about May 28, 1937, the respondent locked out 21 named employees,6
including Garry and Bailey, because they joined and assisted the
United and engaged with other employees in concerted activities for
the purpose of collective bargaining; (3) the respondent has refused
and refuses to reinstate the employees so discharged and locked out,
and each of them; (4) from May 8, 1937, to the present the respondent
urged, persuaded, and warned its employees at said plant to refrain
from becoming or remaining members of the United,7 and threatened
them with reprisals if they became or remained members thereof and
did not become and remain members of International Brotherhood of
Electrical Workers; and (5) by other acts the respondent interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed by the Act.
On or about October 25, 1937, the respondent filed its answer in
which it denied all the material allegations of the complaint. The
answer affirmatively alleged that in a consent election held under the
supervision of the Board in October 1936 the Brotherhood was desig-
nated as exclusive collective bargaining representative by a majority
of the respondent's production employees; that immediately thereafter
all the respondent's production employees who were not members
of the Brotherhood joined that organization; that thereafter the re-
spondent bargained collectively with the Brotherhood and on October
29, 1936, entered into a written contract with it, providing, among
other things, for membership in the Brotherhood as a condition of
employment of all production employees in the respondent's plant;
that
8. Since said contract was executed, and continuously there-
after, it has been acted upon by the parties thereto and by all
of respondent's production employees as a valid and binding
agreement, and is now in all respects in full force and effect.
9. Upon the execution of said agreement and during all the
times thereafter until the present time, both respondent and said
Union, and all of respondent's production employees, both indi-
vidually and collectively, construed and performed said agree-
The names of these persons , besides Garry and Bailey , are : Rudolph Anderson, Theo-
dore Byman , Elinar Carlson , John Erickson , Reuben Hincula , Runar Holm , Ben Jacobs,
Arthur Kaivisto, Vernon Lindbloom , John Mancuso , Genfrid Nissen , Ben Richmond, Leo
Rutkin, Jack Schraier, Herbert Schwartz, William Triller, Louis Wohlmuth , Edward Wolfe,
and John Zaviski. The complaint named Edward Wolfe as Edward Wolse, and Theodore
Byman as Theodore Hyman. At the hearing the complaint was amended to set forth
correctly the names of these individuals . Runar Holm , as appears from the evidence, was
incorrectly referred to in the complaint as Rimar Holm , and John Erickson as John
Ericson.
7 See footnote 5, supra.
ANSLEY RADPO C'ORPO'RATION, 1033
ment as a closed shop contract within the meaning of Section
8 (3) of the National Labor Relations Act, in that membership in
said Union, in fact, became and now is a condition of employment
for all production workers in respondent's factory, and since the
execution of said contract respondent has employed only members
of said Union;
that in May 1937 the respondent laid off all its production employees,
including those named in the complaint, because of a slack season in
its business, and did so with the permission of the Brotherhood and
in accordance with the terms of the above-mentioned contract; that
the respondent since has reemployed such of the laid-off employees
as continued to be members of the Brotherhood; that the employees
mentioned in the complaint ceased to be Brotherhood members after
their lay-off and before any reemployment occurred, and, therefore,
under the terms of the contract were not eligible for reemployment.
The respondent's answer further set forth that prior to their respective
lay-offs, each of the employees mentioned in the complaint had been
"guilty of one or more of the acts prohibited in Section Sixth of said
contract, to wit, sabotage, inefficiency, repeated tardiness, drunken-
ness, or wilful violation of company rules," 8 by reason whereof each
became and was ineligible for reemployment even though he retained
or resumed membership in the Brotherhood. At the hearing the
answer was amended to admit the allegations of the complaint relating
to the jurisdiction of the Board as to the subject matter.
On January 13, 1938, the Brotherhood filed its answer to the com-
plaint in which it denied all material averments thereof. The answer
alleged that the Brotherhood was and is the exclusive collective bar-
gaining representative of "the workers and employees" of the respond-
ent for purposes of collective bargaining, and that the United is not
and never was such representative. The answer set forth facts similar
to those alleged in the answer of the respondent, above mentioned,
regarding the consent election and the contract of October 29, 1936,
and further alleged that such contract terminated on November 2,
1937, and that since then a new agreement for a period of 1 year was
entered into by the respondent and the Brotherhood which provided,
among other things, that membership in the Brotherhood was to be
a condition of employment for production employees of the respond-
ent. The answer also alleged that the contract of October 29 and the
new contract were "just, equitable, fair and right and fully adapted
in their terms and conditions to promote, protect and secure all proper,
material and just rights of" the respondent's production employees.
Pursuant to notice a consolidated hearing in the two cases was held
at New York City from January 13 to 26, 1938, before William
8 See footnote 51, infra.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seagle, the Trial Examiner duly designated by the Board. The
Board, the respondent, the U. E. R. M. W., and the United were
represented by counsel and participated in the hearing. At the be-
ginning of the hearing the Brotherhood moved for leave to intervene
in the proceedings, which motion the Trial Examiner granted, sub-
ject, however, to the limitation that the intervention relate only to
the validity and interpretation of the contracts between the Brother-
hood and the respondent involved herein. Despite this initial ruling
the Brotherhood thereafter was accorded wide latitude in its par-
ticipation in the hearing, and it raised no objection in its exceptions
to the Intermediate Report or at the oral argument before the Board,
mentioned below, that the scope of its intervention had been im-
properly or unduly limited. Full opportunity to, be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. The Brotherhood moved
that the Trial Examiner disqualify himself from hearing the cases
because of asserted prior expressions by the Trial Examiner on the
issues and because of alleged prejudice toward the Brotherhood.
The respondent moved that the representation case be severed and
heard separately from the complaint case, on the ' ground that the
Trial Examiner could not act in an investigatory and judicial capa-
city at the same hearing. These motions were denied by the Trial
Examiner. The respondent and the Brotherhood made several mo-
tions to dismiss the complaint, as amended, and to withhold the tak-
ing of testimony, and certain motions to dismiss the petition, which
the Trial Examiner also denied. He reserved decision on certain
other motions of the respondent and the Brotherhood to dismiss the
petition. He granted a motion to strike from the complaint, as
amended, the name of Einar Carlson, and at the close of the hearing
granted a motion by counsel for the Board to conform the pleadings
to the proof with respect to immaterial variances in names, dates, and
places. During the course of the hearing the Trial Examiner made
various other rulings, including rulings on motions and on objections
to the admission of evidence. The Board has reviewed these rulings
of the Trial Examiner, and, except, where inconsistent with the find-
ings, conclusions, and order below, finds that no prejudicial error
was committed. The rulings, thus limited, are hereby affirmed. The
motions to dismiss the petition, on which ruling was reserved by the
Trial Examiner, are hereby granted for reasons appearing below.
On or about April 13, 1938, the Trial Examiner filed his Inter-
mediate Report, in which he found that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act. He recommended that the respondent cease and de-
ANSLEY RADIO CORPORATION 1035
sist from its unfair labor practices; that the allegations of the com-
plaint, as amended, regarding John Mancuso, Theodore Byman, and
John Zaviski 9 be dismissed, on the ground that these persons had not
appeared to testify concerning the alleged discrimination of the re-
spondent against them; that the respondent reinstate with back pay
to their former positions James Garry and Morris Bailey and the
other of the respondent's employees named in the complaint, as
amended, except those as to whom the allegations were recommended
to be dismissed ; and that it take certain other action to remedy the
situation brought about by the unfair labor practices which he found.
On April 23, 1938, the respondent and the Brotherhood each filed
exceptions to the Intermediate Report, and the respondent requested
oral argument before the Board. On May 24, 1938, pursuant to
notice, a hearing was held before the Board in Washington, D. C., for
the purposes of oral argument. The respondent, the United, the
U. E. R. M. W., and the Brotherhood were present at the hearing
and participated in the oral argument. The respondent and the
Brotherhood also submitted briefs in support of their respective
positions. We sustain the exceptions of the respondent and of the
Brotherhood to the Trial Examiner's Intermediate Report to the
extent hereinafter indicated.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation having its principal
office in New York City. It is engaged in the manufacture and sale
of radios, phonographs, and radio-phonograph combinations. It
operates a plant, warehouse, and retail store in New. York City.
These proceedings concern only production workers employed at this
plant. Unless otherwise indicated all employees mentioned herein-
after are and were non-supervisory production employees.
The principal materials and parts used by,the respondent in the
course of production at the New York plant are plywood, radio
chassis, phonograph motors, automatic record changers, and phono-
graph pick-up crystal units. During the period from January 1
to September 1, 1937, it purchased $104,327 worth of such materials
and parts, about 20 per cent of which were purchased and brought
to the plant from outside of the State of New York. During the
same period the gross sales of the respondent's finished products
amounted to $154,260, of which $25,173 worth, or 161/2 per cent, were
The Trial Examiner included Einar Carlson among those with respect to whom the
allegations were recommended to be dismissed . However, as above stated , Carlson's name
already had been stricken from the complaint , as amended.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sold and shipped by the respondent from the plant to points outside
of the State of New York. The respondent and the Brotherhood
stipulated and agreed at the hearing that for the purposes of these
proceedings the respondent is engaged in commerce among the several
States, within the meaning of the Act.
On May 21, 1937, the respondent employed 27 production em-
ployees in its New York plant, excluding supervisory employees.
II. THE ORGANIZATIONS INVOLVED
Local 1221 of United Electrical & Radio Workers of America was a
labor organization chartered by United Electrical & Radio Workers
of America, a labor organization now known as United Electrical,
Radio & Machine Workers of America, affiliated with the Committee
for Industrial Organization.- Local 1221 admitted to membership
all production employees of the respondent. It was succeeded by
Local 1206 of United Electricals Radio & Machine Workers of
America. The U. E. R. M. W. admitted and admits to membership
all production employees of the respondent.
Radio Factory Workers' Union, Local B-1010 of the International
Brotherhood of Electrical Workers, is a labor organization chartered
as a local of and by International Brotherhood of Electrical Work-
ers, a labor organization affiliated with the American Federation of
Labor. The Brotherhood admitted and admits to its membership
all production employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Organization of the respondent's plant by the Brotherhood in
the fall of 1936
From the' middle of October until the early part of November 1936
the Brotherhood conducted a campaign for members among the re-
spondent's production employees."' On October 23, 1936, pursuant
to written agreement and consent of the respondent, the Brotherhood,
and the Board, an election by secret ballot was held under the super-
vision of the Acting Regional Director for the Second Region among
these employees to determine whether or not they desired to be rep-
resented by the Brotherhood for purposes of collective bargaining
with the respondent in respect to wages, hours of employment, and
other working conditions. The results of the election were 47 to 16
in favor of the Brotherhood, that is, a majority of the respondent's
production employees selected and designated the Brotherhood their
10 Now the Congress of Industrial Organizations.
11 The categories of employees included within the term "production employees" are
discussed in Section III, D , infra.
ANSLEY RADIO CORPORATION 1037
collective bargaining agency. Thereafter, on October 29, 1936, the
respondent and the Brotherhood executed a written contract, more
fully discussed below, providing for wages, hours of employment,
and other working conditions of the respondent's production employ-
ees. The contract by its terms was to remain in force for a period
of 1 year. By November 6, 1936, all these workers, save one, joined
the Brotherhood and designated it their collective bargaining repre-
sentative, and the one who did not join terminated his employment
with the respondent on or about that date.
B. The discriminatory discharges of Garry and Bailey on May 24,
1937
In the spring of 1937 disagreement arose within the ranks of the
Brotherhood over the conduct of its affairs. Garry and Bailey, two
of the respondent's employees mentioned in the complaint, as
amended, and one Rosenthal, another employee, were leaders among
the members of the dissident faction employed at the respondent's
plant. Garry and Bailey distributed to employees inside the plant
in the presence of foremen copies of a monthly newspaper, The
Radio Progressive, which the dissident group began to publish in
April. They also collected funds for this venture inside the plant
from the employees. We are satisfied and find that the president of
the respondent, Ansley, and accordingly the respondent, had knowl-
edge of the publication of this newspaper as well as of its contents
for a considerable period prior to May 24, 1937. Ansley testified
that he "saw some copies of that paper," that he "glanced" at copies
thereof "probably during April," and that he "supposed it was some
sort of internal scrap in that union." We also find that the re-
spondent knew that this newspaper was published in behalf of a
dissident faction 12 and knew that the two employees were assisting
in its circulation. The newspaper in question was severely critical
of actions and policies of the Brotherhood and devoted considerable
space to a demand that shop chairmen in the various shops organized
by the Brotherhood be elected by the workers themselves and not be
appointed by the Brotherhood officials. Among other things, atten-
tion was called to achievements of the Committee for Industrial
Organization, the parent affiliate of the U. E. R. M. W., in securing
better working conditions for employees, and to alleged unfair acts
of the Brotherhood itself which the U. E. R. M, W. had had to meet
in organizing radio workers in New York City and the vicinity.
On April 28 Rosenthal's employment terminated. He had been
shop chairman of the Brotherhood at the respondent's plant. On
May 10, 16 or 17 of the respondent's employees met outside the plant
12A reading of the newspaper above would indicate this.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and decided not to pay dues to the Brotherhood unless permitted by
that organization to elect their own shop chairman to succeed Rosen-
thal. This precipitated a visit at the plant on May 21 of several
Brotherhood officials for the purpose of collecting dues from the em-
ployees. The respondent through one of its foremen notified all
employees of the presence of the Brotherhood officials and of the
purpose of their visit. Thereupon the employees were requested
by the Brotherhood officials in the presence of a foreman and another
supervisor to pay their dues. There is no claim or showing that dues
ever had previously been collected in such fashion at the respondent's
plant. A majority of the employees, including Garry and Bailey,
refused to pay. About a week previous it had become apparent to
the respondent's employees that their desire to select their own shop
chairman would not be met by the Brotherhood. At that time Garry
began to talk with his fellow workers about the Committee for In-
dustrial Organization. He pointed out that that organization "was
beginning to organize the radio and electrical industry throughout
the country," and expressed the opinion that sooner or later all radio
workers would be affiliated with that union. He had such a discussion
with substantially all the plant employees. Similarly, Bailey for
several weeks prior to the visit of the Brotherhood officials held daily
conversations with employees during the lunch hour at the plant in
which he "would talk about the C. I. 0.13 and the fact we weren't
getting,any satisfaction from the I. B. E. W." 14
Three days after the incident regarding the collection of dues, the
respondent dismissed Garry and Bailey from its employment. The
two men were told by their foreman that they were being laid off
because of lack of work. Garry protested to Riechers,15 a supervisory
official, that his lay-off violated his seniority rights and was contrary
to the provisions of the October 29 contract 16 This protest was un-
availing. Shortly thereafter Foreman Steianson told one employee
who had been present when Garry made his protest that Garry and
Bailey were laid off "because they were nothing else but agitators
and Communists." He made a similar statement to at least one other
employee. In discussing the matter with Foreman Carlson, Steian-
son said that the two employees "were working for the C. I. O.," 17
and that they were "agitators" and "Communists."
At the hearing the respondent contended that it laid off Garry and
Bailey on May 24 because of slack work and, chiefly, because it sus-
pected that these persons were causing a slowing down of production
1s This referred to the Committee for Industrial Organization and the U. E . It. M. W.
'* See footnote 3, supra.
15 Also referred to in the record as Rickets , Rickers, and Reichers.
19 See footnote 51, infra.
17 This referred to the Committee for Industrial Organization.
ANS'LEY RADIO 'CORPO'RATION 1039
by all plant employees 16 Certain other reasons also were advanced
by the respondent at the hearing, but these clearly are without sup-
port in the record and require no further mention. We are not per-
suaded that an alleged decrease in available work caused the dismis-
sal of the two employees on May 24. Both men concededly were
senior to other employees in point of service, and, assuming that busi-
ness was slack, were entitled under the contract of October 29 to
retain their positions.19 At the hearing Ansley sought to explain that
"It was with the permission of the union that we departed from the
seniority rights called for in the contract in the case of those two
men." However, that the respondent properly might have ignored
seniority rights if the dismissal was for lawful cause other than slack
work obviously does not show that the respondent would be justified
in ignoring these rights if mere slack work was the cause. The
version concerning a conversation with Ansley given at the hearing
by Beedie, the business agent of the Brotherhood, in which the per-
mission of the Brotherhood allegedly was obtained discloses no assent
by the Brotherhood to a disregarding of seniority rights, if, indeed,
the Brotherhood lawfully could have, given such assent. We are
satisfied, and find, that the Brotherhood did not consent to a depriva-
tion of seniority rights with respect to a lay-off for slack work.
Nor are we convinced that Garry and Bailey were dismissed
because of a suspicion or belief that they were the cause of a
decrease in the productivity of the plant employees. Ansley, the
principal witness in support of this contention, testified that the
respondent's "labor ' cost for the . . . two or three months [prior
to May 24] had been altogether out of proportion with everything
before that. It was almost three times the previous cost of labor
in proportion to the material sold"; 20 that in this period "during
working hours whenever the foreman would leave the room, as soon
as he would return he would find all the men gathered together in
a group in the middle of the room around Garry and Bailey, and
as soon as he came in they . . . [would] all scatter back to their
work again"; that Ansley saw this occur several times and called
it to the attention of the foreman who apparently had not pre-
viously noticed the occurrence; that upon Ansley's direction the
foreman asked the employees "to pay attention to their work dur-
1s Ansley testified, "There were two reasons. The fact that the work was getting very
slow, and the reason we laid them off instead of the others was because we suspected
them of this, what might be called sabotage activity in the shop." He further testified to
having informed the business agent of the Brotherhood, one Beedie, that "the men in the
shop in all of the departments were getting less than. half the work out that they had been
doing previously .
19 See footnote 51, infra.
20 Ansley apparently meant "in proportion to the selling price .of the material produced
during the period." since material sold need not have been confined to material produced
during the period.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing working hours"; that the respondent never made inquiry of
the employees about the reason for their alleged slowing down in
production; that "it was very evident [to the respondent] that
[Garry and Bailey] . . . were the leaders in whatever it was that
was holding up the work in the shop"; that "we suspected them
of being the cause of this slowing up of the work, but we had no
definite proof of that, so we laid them off . . . to see whether that
cleared up the situation"; and that the respondent never discussed
with Garry or Bailey prior to their dismissal their alleged leader-
ship in causing the supposed slowing-down of work. Ansley fur-
ther stated that in a conversation had with Beedie 27 a few days
before May 24 he took the position that "it seemed quite evident that
there was a concerted effort on the part of the employees [in all
plant departments] to hold up this work, and that it also seemed
evident that Bailey and Garry were the leaders of this activity.
We are unable to accept Ansley's testimony as warranting or
reasonably supporting a finding that a plant-wide decrease in pro-
ductivity for 2 or 3 months of such character as supposedly led to
a dismissal of the two employees for experimental reasons in fact
occurred. Nor do we believe, for grounds sufficiently hereinafter
appearing, that the respondent actually then thought that such
was the fact. That the respondent's labor costs trebled, if they did,
could be attributable to many factors arising in the operation -of
the respondent's business apart from a decline in the production
rate of its employees. Ansley's testimony regarding the occurrence
of conversations among employees when foremen were not present,
we feel, greatly exaggerated the extent and effect of what conver-
sations did occur during working hours. One of the respondent's
witnesses testified on cross-examination that no conversations of the
kind asserted took place.22 In further support of its contention that
u Beedie testified to having received complaints about work from Ansley beginning in
November after the October 29 contract was signed . On the other hand Ansley testified
that the employees worked satisfactorily until March 1937, and that he first complained
of their work to Beedie in April 1937. We are of the opinion that the complaints to
Beedie by Ansley were the customary complaints between a union and employer where
such a relationship as here is involved exists, that the complaints did not concern a
situation which it is contended brought about the dismissals of Garry and Bailey.
22 The witness , Downey, testified :
Q. Prior to May 28, 1937, did men ever gather together for the purpose of talking
about the union in the shop?
A. Yes, sir.
Q. Did that occur during working hours?
A. No, not during working hours.
Q. Never?
A. At times a couple of men would sort of get together for maybe a minute or so,
while the foreman was not there, and disperse.
Q. Was the foreman watching them at any time?
A. No, but nobody is going to leave their job, a bunch of men, and start to hold
a meeting that would jeopardize their own jobs.
ANSLEY RADIO CORPORATION 1041
productivity substantially decreased, the respondent sought to show
that Garry and Bailey themselves had been inefficient, that they
had been deliberately slow in their work, had attempted to persuade
employees to slow down, and had committed other acts of sabotage.23
The testimony of the two men is to the contrary. We are of the
opinion that the record does not establish either such facts or the
respondent's contention.- We find that Garry and Bailey were
efficient workmen and did not commit the acts so charged and other-
wise alleged. We have been impressed throughout with the fact
that had a condition obtained among the employees at the respond-
ent's plant in which a plant-wide decrease in productivity occurred
so extensive as to increase substantially labor costs and so per-
sistent as to endure for 2 or 3 months, the respondent would have
taken more prompt and appropriate means to meet the situation
than it here has shown were pursued. Since the record fails to
establish that a decrease did occur and since we are satisfied that
the respondent prior to May 24 did not actually believe that it had
occurred, we cannot find upon this record that Garry and Bailey
were dismissed as suspected leaders in a "concerted effort" to bring
about a decrease or as persons who otherwise were believed to be
the cause or were the cause of a decrease.
Upon the foregoing facts, in the light of the entire record, we are
convinced that the respondent dismissed Garry and Bailey for the
reason that as leaders of the members of the dissident faction at the
plant they cane to favor and assist a competing labor organization,
the U. E. R. M. W.,25 and attempted to induce the other plant em-
ployees to join that organization and to disassociate themselves from
the Brotherhood unless the requests which had been made of the
.Brotherhood were met. It is plain to us that the two men, particu-
larly following the Brotherhood's refusal to permit the respondent's
employees to select their own shop chairman, began to advocate
among their fellow workers a change in affiliation from the Brother-
hood to the U. E. R. M. W. as a means for retaining the benefits of
unionization and at the same time avoiding the dissatisfaction which
the plant employees apparently had experienced because of the actions
and policies of the Brotherhood. We have no doubt that the re-
23 Ansley admitted at the hearing that the respondent had no evidence prior to May 24
warranting a discharge of Garry or Bailey for sabotage.
24 Much of the respondent 's testimony shows a misconstruction of ordinary occurrences.
Thus, the witness Shores testified that Garry told him "not to go so fast and take
things easy." On cross-examination it appeared that the statement had been made in
connection with certain "rush jobs." He also stated that he "could not say for sure"
that Garry made similar statements to others. The witness testified to observing Garry
carry four radio sets from one floor to another and trip and drop them. When asked
if the accident appeared deliberate the witness stated, "I would say due to carelessness.
I would not say it was deliberate."
15 See footnote 5, supra.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent was well informed throughout April and May of the
"internal scrap" of the Brotherhood , that it was aware of Garry
and Bailey 's leadership among the dissidents at the plant , and that
it knew of the two employees ' talk and advocacy of change in affilia-
tion. The refusal of a majority of the plant employees on May
21 to pay dues brought the entire issue to the fore, in so far as the
respondent's employees were concerned , and made manifest to the
respondent as well as to others interested the imminence of a defec-
tion to the U. E. R. M. W . We are satisfied that it was to prevent
such a defection by a substantial number or majority of its employees
and to avoid the difficulties it believed would result from an interrup-
tion of its relations with the Brotherhood that the respondent
selected for dismissal and dismissed the two employees who had led
the dissident group and had spoken of the U. E. R. M . W. as a way
out. The effect of such dismissal necessarily would be, as the respond-
ent intended , to encourage continued membership in the Brotherhood
and to discourage a defection to the U. E. R. M . W. Equally, the
respondent 's action would interfere with , restrain , and coerce the
plant employees in a matter of self-organization and with regard to
their forming , joining, and assisting a labor organization other than
the Brotherhood and their engaging in concerted activities for mutual
aid and protection.
If the dismissal of employees for such talk and advocacy of a
change in affiliation from one labor organization to another, such a
dismissal having the effects mentioned , constitutes an unfair labor
practice under the Act, the respondent clearly was not privileged to
engage in this practice as a means of avoiding a possible disturbance
to its relations with the Brotherhood . However , the issue is raised
whether the respondent 26 may justify its dismissal of Garry and
Bailey as permissive conduct under the proviso clause of Section 8
(3) of the Act.27 We think not . Assuming that the then existing
contract of October 29 between the respondent and the Brotherhood
validly provided that the respondent was to require membership in
the Brotherhood as a condition of employment of all production
workers employed by it , a matter hereinafter considered ' 211 there is no
contention nor do we find that the contract contained any provision
R6 What inference might be drawn from the circumstances of the case that the Brother-
hood officials instigated the dismissal must defer to the direct testimony of the respondent
and the Brotherhood's witnesses to the contrary.
27 The proviso to Section 8 (3) of the Act is as follows :
Provided, That nothing in this 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 condi-
tion of employment membership therein, if such labor organization is the represent-
ative of the employees as provided in Section 9 (a), in the appropriate collective
bargaining unit covered by such agreement when made.
21 See Section III, D, infra.
ANS'LIfY RADIO CORPORATION 1043
that the respondent was to require abstention from talk and advocacy
of change in affiliation from the Brotherhood to a rival labor organi-
zation as a condition of employment. A contract to require union
membership as a condition of employment should not be freely
interpreted to condition livelihood on any other fact or circumstance.
Since the respondent had no contract requiring it to dismiss Garry
and Bailey for such talk and advocacy, their dismissal, if otherwise
in contravention of the Act, could not be justified under the proviso
clause.29
Nor do we believe, if the contract of October 29 was a closed-shop
agreement, that the respondent could justify the dismissal under
the proviso clause on the ground that Garry and Bailey were not
members of the Brotherhood on May 24. At the time of the dismissal
both men were members of the Brotherhood and were not members
of any other labor organization. Although the constitution of the
International Brotherhood of Electrical Workers, the parent organiza-
tion of the Brotherhood, subjects members of the Brotherhood to
suspension or expulsion if they advocate defection to another labor
organization,30 Garry and Bailey in fact were not suspended or
expelled from the Brotherhood nor were, their respective member-
ships in the Brotherhood otherwise terminated by the Brotherhood
prior to May 24 for that or for any other reason. Furthermore, the
respondent did not believe, nor did the Brotherhood inform it, that
such was the case. The record does not show that before that date
the two men by withdrawal or resignation, or by other formal or
informal act, terminated their memberships in the Brotherhood. It
is not shown that either employee previous to his dismissal manifested
or represented to the respondent or generally assumed the position
that he had terminated his status as a Brotherhood member and that
the respondent could rely thereon as a fact.31 Discussing another
labor organization with fellow employees and advocacy of change of
29 See Matter of Williams Coal Company and United Mine Workers of America, District
No. 28, 11 N. L. R. B. 579, 614-615. It is unnecessary for us to consider whether under
the proviso clause of Section 8 (3) an employer, in pursuance of a closed-shop contract,
may on his own initiative lawfully take action affecting the employment of an employee
who is not a member of the contracting labor organization.
31 The constitution of the International Brotherhood of Electrical Workers provides as
follows :
ARTICLa XXVIII . Misconduct, Offenses and Penalties .. .
Sac. 2 . Any member may be penalized for committing any one or more of the
following offenses : . . .
( 5) Advocating or attempting to bring about a withdrawal from the I. B. E. W.
of any L . U. [Local Union] or of any member or group of members. . . .
(9) Working in the interest of any organization or cause which is detrimental
to-or opposed to-the I. B. E. W.
Any member convicted of any one or more of the above named offenses may be
assessed or suspended, or both-or expelled . . .
See footnote 45, infra.
a' Cf. Matter of M. d J. Tracy, Inc. and Inland Boatman's Union, 12 N. L. R. B. 916.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation to that organization were not acts necessarily indicative
of a termination of current membership in the Brotherhood. We
take notice that conduct of this character recurs, and that dissidents
are not by that fact alone adjudged to have terminated their mem-
bership.II2 Since Garry and Bailey were members of the Brotherhood
at thw time of their dismissal, and the Brotherhood did not notify
the respondent otherwise, and since these employees did not by action
upon which the respondent could rely represent to the respondent
that they were not members, the respondent could not excuse its
action against them on the ground that the contract of October 29
provided for a closed shop and the two men were not members.
We find that the respondent on May 24, 1937, discriminated in
regard to the hire and tenure of employment of James Garry and
Morris Bailey, and each of them, because they favored and assisted
the U. E. R. M. W. and attempted to induce other employees to: join
that organization and to disassociate themselves from the Brother-
hood, thereby encouraging membership in the Brotherhood and dis-
couraging membership in any other labor organization, including
the U. E. R. M. W., and that by such discrimination the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Some question has arisen as to whether the two employees were
merely laid off or in fact discharged. That issue is without substance,
for in either event the respondent discriminated in regard to hire and
tenure of employment, within the meaning of the Act.33 Upon the
circumstances presented, especially the purposes which induced the
dismissal, we are of the opinion, and find, that the respondent
intended to rid itself permanently of the two men and, accordingly,
that it discharged them.
At the time of the dismissal, each of the two employees was being
compensated by the respondent at the rate of 48 cents an hour, Garry
for work as a wireman, Bailey for work as in assembler and wireman.
Since the dismissal Garry has had no other employment ; Bailey
worked as a draftsman for 2 months but was then laid off. Both
men desire reinstatement to their former positions with the
respondent.
C. The lay-off of May 18, 1937
On May 24, 1937 , shortly after the close of the working day, the
United was organized by certain of the plant employees as a local
=This is true quite apart from the fact that many employees hold memberships in
competing labor organizations.
83 Matter of Precision Castings Company, Inc. and Iron Molders Union of North America,
Local 80, 8 N. L. R. B. 879, 890 ; Matter of Servel Inc. and United Electrical, Radio and
Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295, 1330.
ANSLEY RADIO 'CORPORATION 1045
of the U. E. R. M. W. Fifteen of the respondent's production
workers, together with Garry and Bailey '34 composed its initial
membership. They elected officers of the new organization. and .desig-
nated--the' U. E. R. M. W. and the United their representative for
collective bargaining with the respondent in regard to wages, hours
of service, and other working conditions. The 15 employees 'consti-
tuted a majority of the respondent's 24 production employees,
excluding supervisors, then at work in the plant.35 On May 25 four
more of the respondent's production workers became members of the
United, and on May 26 another one joined.
On May 26 the United, acting through Carey, the president of the
U. E. R. M. W., notified the respondent in writing 33 that a majority
of the respondent's employees had "formed a local union" of the
U. E. R. M. W. The names of these employees were not mentioned.
The respondent was requested to arrange a conference with a com-
mittee of the United "to discuss wages, hours, and working conditions,
and for the purpose of reaching an agreement in accordance with the
Wagner Law."
Upon receipt of this notification and request the respondent through
Ansley promptly informed the Brotherhood of the situation which
had developed. Ansley then went to the Regional Office of the Sec-
ond Region and sought the advice of members of the Board's staff.
He was joined there by Beedie. Ansley stated to a staff member that
the respondent was perplexed by the situation in which it found
itself, that it had an outstanding closed-shop contract- with the
Brotherhood covering all production employees at the plant, but a
majority of these employees were now members of the United and
desired to be represented by that organization and not by the Broth-
erhood for purposes of collective bargaining. The staff member
told Ansley that the Board could not aid the respondent in de-
termining what course it should pursue ; that the matter required
legal advice and assistance. It was pointed out that the Brotherhood,
the United, and the employees themselves, as well as the respondent,
had interests which conceivably might be affected. Thereafter
and on May 26 the respondent replied in writing to the United's re-
quest for a conference. It adverted to the conversation which
Ansley had had in the Regional Office as confirming its "impres-
sion" that the contract of October 29 was binding upon the respondent
84 Despite their discharge , Garry and Bailey were employees , within the meaning of Sec-
tion 2 ( 3) of the Act. However, we have excluded them in all computations relating to
representation since their inclusion or exclusion is unimportant to a decision of the issues
presented . Cf. Matter of Seattle Post-Intelligencer Department of Hearst Publications,
Inc. and Seattle Newspaper Guild, Local No. 82, 9 N. L . R. B. 1262, 1283-1284.
85 Garry and Bailey are not included , nor is one Swedlow whose employment had there-
tofore been terminated.
81 This was a letter dated May 25.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the employees, and suggested that the United consult with the
staff member before taking any further action.'?
On May 28 the respondent laid off all its production employees.
We find that the respondent did not intend to nor did it then discharge
any of these persons, and that they continued to be employees of the
respondent. Each was told by his foreman to see the Brotherhood.
However, none of the production employees who had joined the
United, except one Lowney and one Shores, did so.-,' On June 2
the Brotherhood by letters of that date to Garry, Bailey, and 10 of
the production employees gave written notice to each of these persons
that he was "suspended pending trial, from all rights, privileges, and
membership in [the Brotherhood] . . . by unanimous decision of
the Executive Board of the . . . [Brotherhood]"; that a trial would
be held by the Brotherhood to determine whether he had violated
the constitution of the organization; and that meanwhile he was
"prohibited; from working in any union shop under contract with
the I. B. E. W."
The respondent contends that its lay-off of May 28 was occasioned
by a decrease in the volume of its sales, alleged financial distress in
the conduct of its business, and the asserted lower productivity of
its employees heretofore discussed. We agree with the Trial Ex-
aminer that none of these explanations has substantial support in the
record.39
Hereinafter, we find that the agreement of October 29 provided
that the respondent would require membership in the Brotherhood
as a condition of employment of all production workers at the plant.411
What has been set forth above shows that the respondent considered
this provision to be in force at and after the time when the large
majority of its production workers formed and joined the United.
The visit of Ansley to the Regional Office 2 days before the lay-off
establishes that the respondent also believed that there then was
strong likelihood of an immediate demand being made by the Broth-
erhood under the closed-shop agreement for a replacement of all
these employees with Brotherhood members. Under the circum-
stances presented, we are satisfied that the respondent laid off the
production workers on May 28 in the belief that thereby it would
37 This proceeding involves no charge that the respondent refused to bargain collectively
with the United or with any other labor organization, within the meaning of Section 8 (5)
of the Act.
39 The 18 production employees referred to are all those named in the complaint, exclud-
ing Garry and Bailey.
30 while a decrease in sales commencing in May and continuing through August 1937
occurred, and while a lay-off of some production employees might have resulted therefrom,
we do not believe that the decrease adequately explains the lay-off of all production
workers.
110 See Section III, D, infra. The Trial Examiner found the contract not to be for a
closed shop.
ANSLEY RADIO CORPORATION 1047
avert any such immediate replacement, and that its employees would
be afforded an interim for deliberation and action. The notification
of May 26 which the respondent received from the United required
its immediate meeting of the issue. Irrespective of whether those
who joined the United were or were not then members of the Broth-
erhood the respondent could assume from the notification that they
no longer were members, at least to the extent that such an assump-
tion entered into its decision to lay off all the production workers.41
It is not relevant that the notification failed to name the employees
who had joined the United or that the respondent did not on May 28
know their identity, if such was the case, for the respondent was
informed by their representative of the fact that a substantial num-
ber, a majority, of its employees had affiliated themselves with the
United.
I am of the opinion that the lay-off was not a discriminatory act
in regard to hire and tenure of employment, or terms and conditions
of employment, to encourage membership in the Brotherhood or dis-
courage it in the United, within the meaning of Section 8 (3) ; that
it was not an infringement of the right of self-organization or of
other rights guaranteed in Section 7, within. the meaning of Section
8 (1). The closed-shop provision of the agreement of October 29
was, in my opinion as more fully stated below, operative when the
lay-off occurred. The respondent's assumption at that time that the
Brotherhood shortly would call upon it to replace substantially its
entire working force with new employees who were Brotherhood
members was founded on the contract and was a reasonable one for it
to make. For the respondent to act as it did in order to delay a
displacement and permit its employees to take what action they
wished without having their jobs meanwhile filled by others, con-
travened no provision of the statute. What encouragement or dis-
couragement of membership in a labor organization thereafter may
have occurred must be attributed to the force of the closed-shop
agreement, not the respondent's action.
Mr. Edwin S. Smith takes the position that upon the foregoing
facts found by the Board the lay-off constituted an unfair labor prac-
tice under the Act. He has stated his position in a separate opinion.
Mr. William M. Leiserson is of the view as set forth in his separate
opinion that the entire proceedings should be dismissed. Under these
circumstances we will dismiss the complaint, as amended, in so far
as it alleges that the respondent locked out the employees therein
41 The formation of the United, the above request for collective bargaining through the
United, and certain other subsequent acts by those engaging therein, as establishing a with-
drawal from the Brotherhood, are dealt with hereinafter. Cf..Matter of United Fruit Com-
pany and International Longshoremen and Warehousemen 's Union, District No. 3, Local
No. 901, affiliated with the C. I. 0., 12 N. L. R. B. 404.
283029-41-vol. 18---67
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named, or any of them, because they joined or assisted the United
or engaged with other employees in concerted activities for the pur-
poses of collective bargaining.
D. The refusal on and after June 10, 1937, to reinstate all laid-off
employees who terminated their status as Brotherhood members
On June 7, 1937, the Brotherhood wrote the respondent, in part,
as follows :
A group of your former employees have voluntarily of their
own free will withdrawn themselves and resigned from Local
B1010 I. B. E. W. and are no longer bound by the terms and
conditions of the union contract covering working conditions in
your factory and are therefore no longer eligible for employment
in your factory.
As soon as you are in a position to resume operations we
request that you notify this office of all help required even to
existing old loyal help who will be notified to return to work
by this office.
If there are one or two employees that you think are O. K.
these should also be notified to report to this office where they
will be required to repudiate any association with outside
organizations.
We are ready to supply workers ready and willing to work
honorably under the terms of our existing agreement.. In view
of rumors coming from the resigned employees it would be
advisable to refer them to this office if they should ever appear
at your office.
Appended to the foregoing letter was a list of names of 11 persons
therein referred to as the "former employees . . . no longer eligible
for employment." Nine of these were employees who had been laid
off on May 28; the other two were Garry and Bailey. All were
members of the United.
On June 8 the respondent notified the Brotherhood that it was
resuming operations in its production departments and that it
needed production workers. Thereupon, on that day the Brother-
hood communicated with some 10 of the laid-off employees, evidently
persons not named in the above list, notifying them that they were
to report to the office of the Brotherhood for immediate work.42
Several members of the United received this notice. On June 10
the respondent began reinstating and hiring production workers. i3
i
42 The communication did not state where they were to work , but it obviously referred
to work at the plant of the respondent.
43 Some hiring may have been done before June 10, but the matter is irrelevant to the
issues here presented.
ANSLEY RADIO CORPORATION 1049
On June 11 a skeleton force was at work, comprising three employees
who had been laid off on May 28, and four others who were not in
the respondent's employ on that date. All of these persons obtained
their reinstatement or employment through the Brotherhood and
were Brotherhood members. Two of the three old employees were
required by the Brotherhood before returning to work to execute
a written statement in which they repudiated any support given the
U. E. R. M. W., reaffirmed their loyalty to the Brotherhood, and
pledged obedience to its laws and constitution. The third, Downey,
was the appointed shop chairman.
On June 10 the United, acting through a committee composed of
Garry and four of the laid-off employees, conferred with the .re-
spondent regarding the resumption of production. The respondent
informed the committee that it was compelled to employ its pro-
duction workers "through Local B-1010," that it could do nothing
about reinstating laid-off employees who were members of the United,
and that its "hands were tied in the matter." The committee re-
plied that in that case the old employees who were refused reem-
ployment would consider themselves locked out and would picket the
plant. From June 10 until the fall of 1937 the United carried on
such picketing.
Subsequent to June 10 the respondent gradually increased its pro-
duction force until by November 12, 1937, the number of production
employees at the plant was 47. All these workers were Brother-
hood members and obtained their employment through the Brother-
hood. Except for three more old employees who executed a
repudiation statement, that is, except for six old employees altogether,
none of those who obtained work had been employed at the plant
on May 28. In reinstating and employing persons the respondent
followed the procedure of notifying the Brotherhood of what help it
needed, and then giving employment to the workers furnished it
by the Brotherhood. At least 15 of the employees laid off on May 28
and who theretofore joined the United were never recalled to work
or reinstated or employed by the respondent .41
The record shows that the status of the afore-mentioned 15 persons
as Brotherhood members terminated prior to June 7. While none
" The number of persons laid off on May 28 who theretofore had joined the United was
20. As above stated, on June 11 two of these employees, they being members of the
Brotherhood , were reinstated by the respondent . At the hearing it was stipulated, in
effect, that all the remaining employees who appeared at the hearing had not been recalled
to work. Fifteen of the eighteen remaining employees did so appear . These 15 are all the
persons named in the complaint , as amended, excluding Garry, Bailey , Carlson, and the
three persons as to whom the Trial Examiner recommended that the complaint , as amended,
be dismissed.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was ever expelled or suspended 45 all these persons by their various
acts must be deemed voluntarily to have withdrawn from and to
have indicated their withdrawal to the Brotherhood. Participation
in the group venture of the substantial majority of the production
workers to set up a competing labor organization, a matter of which
the Brotherhood necessarily would and did have knowledge; request-
ing collective bargaining through the rival organization, a matter of
which the Brotherhood also would and did have knowledge; failure
of each of the 15 to register his lay-off of May 28 with the Brother-
hood in accordance with union requirements; and refusing in the
instance of 13 of the 15 to pay to the Brotherhood the monthly dues
accruing in May 46 manifest under the circumstances involved a
withdrawal communicated to the Brotherhood. In turn, the Brother-
hood prior to and after June 7, as shown, among other things, by
its above letter of that date and the procedure it thereafter followed
in furnishing the respondent with workers, considered all laid-off
employees who joined the United, including the above 15, as having
withdrawn from the Brotherhood unless they repudiated their
affiliation with the United and were reinstated to Brotherhood
membership.47 None of the 15 ever ceased being a member of the
United.
We find that on June 10, 1937, when operations in its produc-
tion departments were resumed, the respondent enforced as a condi-
tion of employment of all production employees a requirement that
they be members of the Brotherhood. In accordance therewith the
respondent on June 10 and at all times thereafter failed and refused
to recall to work and reinstate and employ the 15 above-mentioned
persons, for the reason that they and each of them were not members
of the Brotherhood. It is immaterial whether the respondent knew
or did not know the identity of each non-member among the 15.
In the notification of May 26 given the respondent by the United
these employees, along with others, informed the respondent that a
majority of the production workers had formed a rival labor organi-
zation and were seeking a collective contract through it. In the
45 The Constitution of the International Brotherhood of Electrical workers provides
(Art. XXVIII ) for a "fair and impartial trial" before the executive board of the local
union sitting as a trial board, of any member charged with violation of the constitution or
laws of the organization . It is not altogether clear, but apparently under the constitution
joining a competing labor organization constitutes a violation thereof. An appeal from
the trial board 's decision lies to certain International officers, the Executive Council, and
finally to the International convention . It does not appear that the executive board of
the Brotherhood had authority pending such a trial to issue, as it did, the suspension
notice of June 2.
i0 All 15 refused to pay the June and subsequent dues.
41 While the Brotherhood in the above -mentioned letter of June 2 gave notice to certain
employees that it intended to conduct ouster proceedings against them , the evidence shows
that such proceedings were never begun and that the Brotherhood on or about June 7
elected to treat all employees who joined the United as withdrawing from the Brotherhood.
ANSLEY RADIO CORPORATION 1051
absence of any other controlling fact or circumstance an employer,
irrespective of his knowledge of individual affiliation, may rely upon
action taken in a body by a majority of his employees to form an
opposition union and to request collective bargaining with it, as a
representation by all those who in fact are its members that they
have ceased being members of the union they are opposing. This
is especially true where, as with the 15 persons, such employees have
actually terminated their membership in the union opposed.
At no time prior to the resumption of production did the re-
spondent discharge any of its laid-off employees. Hence on June 10,
all were employees of the respondent. However, if on that date the
enforcement of the condition requiring membership in the Brother-
hood contravened the Act, such enforcement was equivalent to a
mass discharge of or refusal to reinstate or employ all laid-off em-
ployees, including the above-mentioned 15, who were not members
of the Brotherhood and who were unwilling to affiliate themselves
with that organization.411 From this viewpoint it would be imma-
terial whether, because of the extended period after June 10 required
to reinstate and employ production employees, some or all of the laid-
off employees who were not members of the Brotherhood would in any
event have received no work on June 10. There is no contention
that positions would never have been available in the ordinary course
of resumed operations, and in the light of the showing that by
November 12, 41 new production employees were at work we may
infer and we find that save for the enforcement of the condition all
such employees, including the 15, would have been recalled to work.
Certain contentions by the respondent that the 15 would not have
been reinstated because of inefficiency and other reasons are un-
founded, and impress us as afterthoughts.
We have repeatedly held that requiring membership in a particular
labor organization as a condition of employment constitutes an unfair
labor practice, within the meaning of Section R (1) and (3) of the
Act,49 unless the imposition and enforcement of the condition are
excused by the proviso clause of Section 8 (3).59 The respondent
Qs Cf. N. L. R. B. v. Mackay Radio d Telegraph Co., 304 17. S. 333, rvs'g 92 F. (2d) 761
C. C. A. 9) and enf'g Matter of Mackay Radio A Telegraph Company, a Corporation, and
American Radio Telegraphists' Association, San Francesco Local No. 3, 1 N. L. It. B. 201
also Matter of Williams Coal Company and United Mine Workers of America, District
No. 23, 11 N. L. It. B. 579, 653-4 ; Matter of Sunshine Mining Company and International
Union of Mine, Mill and Smelter Workers, 7 N. L. It. B. 1252, 1269; Matter of Jacob A.
Hunkele, etc. and Local No. 40 United Laundry Workers Union, 7 N. L. R. B. 1276, 1288.
49 See Matter of Williams Coal Company and United Mine Workers of America, District
No. 23, 11 N. L. It. B. 579, and cases there cited.
a See Matter of ill. 0 J. Tracy, Inc. and Inland Iloatmcn's Union, 12 N. L. It. B. 916;
Matter of United Fruit Company and International Longshoremen and Warehousemen's
Union, District # 3, Local #901, affiliated with C. I. 0., 12 N . L. R. B. 404. See footnote
27, supra.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that because of its contract of October 29 its enforcement of
such a condition was permitted under the terms of the proviso.
The provisions of the agreement of October 29, excluding those
relating to wages, hours of employment, arbitration, and similar
matters, are set forth in the footnote.51 At the time of the making of
the agreement the Brotherhood was not a labor organization estab-
lished, maintained, or assisted, in so far as the respondent's employees
were concerned, by any action of the respondent defined in the Act
61 The agreement , except for matters thus excluded , is as follows :
AGREEMENT
Agreement entered into this day between Ansley Radio Corporation 240 W. 23
St., New York City , N. Y., hereinafter designated as the Employer and the Radio
Factory Workers ' Union Local 18609 , American Federation of Labor, hereinafter
designated as the Union for and in behalf of the said Union, and for and in behalf
of its members , thereof now employed and hereafter employed by the Employer
and collectively designated herein as the Employees.
WITNESSETH:
Whereas, the parties hereto desire to establish a standard of conditions under
which the Employees shall work for the Employer during the term of this agree-
ment, and desire to regulate the mutual relations between the parties hereto with
the view of securing harmonious cooperation between them and settling disputes.
Now, therefore , in consideration of the sum of one ($1 .00) Dollar each to the
other in hand paid, the receipt whereof is hereby mutually acknowledged, and in
consideration of the premises and the mutual promises hereinafter set forth, and
all good and valuable consideration passing between the parties , said parties agree
to and with each other as follows
First. The Union hereby agrees that its members employed by the Employer will
work for the Employer upon terms and conditions set forth in this agreement.
Second. The Employer agrees to call upon the Union for any help he may require
and the Union agrees to supply the workers required within 24 hours after request
is made for them. If they are not so supplied by the Union the Employer may
obtain such Workers elsewhere , in which event such new workers shall be given a
working card by the Union . Such new Employees shall be on a trial period of two
weeks.
Third. The Employer consents that there shall be at all times in the shop of the
Employer , a Shop Chairman appointed by the Union at a regular shop meeting
called by the Union Representatives . This Shop Chairman is to act as a repre-
sentative of the employees in their dealings with the Union Employer.
Sixth. The Employer has the right to discharge Employees for good cause. For
purposes of this agreement good cause may be defined as, Sabotage, Inefficiency,
Repeated Tardiness , Drunkenness , Wilful violation of company rules. Prior to the
discharge of an Employee , the Shop Chairman shall be notified for purposes of
record and the Shop Chairman shall be given an opportunity of discussing the
prospective discharge with the Employer . Before discharging a Shop Chairman
written notification shall be sent the Union and the matter shall be taken up be-
tween the Union Representative and the Employer. -
Tenth. If the Employer shall suspend work during the slow season upon resump-
tion of work re-employment shall be given to Employees who were laid off at the
end of the preceding season before engaging any new help . Providing such old
help is available . On the resumption of work after a suspension , if there should
be one, the shop chairman shall be the first to be re-employed . If the work on
which the Shop Chairman is employed ceases , the Shop Chairman shall ' be put at
other work available , provided he is capable of performing such work.
I
Twelfth. At all times work shall be distributed as equitably as possible. In the
event when work becomes so slack and it is impossible to divide work by means of
ANSLEY RADIO -CORPO'RATION 1053
as or constituting thereunder an unfair labor practice. Moreover,
when the contract was executed the Brotherhood had been and was
the exclusive representative for the purposes of collective bargaining
with the respondent in respect to rates of pay, hours of service, and
other working conditions, of all the employees within an appropriate
collective bargaining unit covered by the contract when made. In
the consent election held on October 23, heretofore mentioned, a
ballot was taken of the respondent's production employees 52 to de-
termine whether or not they wished • to be represented by the Brother-
hood for purposes of collective bargaining. Excluded from partici-
pation in the election were any and all foremen, truck drivers,
shipping-department employees, outside salesmen, salesmen at the
store, office employees, and engineers. At the hearing the parties
stipulated and agreed in effect that all production employees exclud-
ing foremen, truck drivers, shipping-department employees, outside
salesmen, salesmen at the store, office employees, and engineers, con-
stituted an appropriate collective bargaining unit. We see no reason
for finding the unit thus stipulated to by the parties to be inappro-
priate, and accordingly we find that the production employees of the
respondent, exclusive of the employees mentioned, constituted at the
time of the making of the contract of October 29 and at all times
material herein a unit appropriate for purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act, and that said
unit insured to the employees the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuated
the policies of the Act. In the consent election held all employees
eligible to vote therein, 33 in number, cast ballots. As stated hereto-
fore, 17 voted for the Brotherhood.53 Accordingly, in that election
"stagger system" and the Employer is thereby compelled to "lay off" Employees
such Employees shall be laid-off by seniority rights. Such workers laid-off shall
be rehired, if available, by seniority rights, and engaged before any new help is
hired.
Nineteenth. This agreement shall be binding upon the parties hereto and upon
any corporation or copartnership or other firm which succeeds to the business of
this Employer and which is controlled by substantially the same financial interests
which are now interested in the Employer's firm. This agreement shall be binding
upon the Employer or any successor firm in any State of the United States.
In witness whereof we hereto set our hands and affix our seals this day 29th
Oct. 1936 New York City.
This agreement shall commence on 2nd Day of Nov. 1936 and expire on 2nd day
of Nov. 1937.
ANSLEY RADIO CORP.
By ARTHUR C. ANSLEY (Signed)
WILLIAM BEEDIE (Signed)
For Radio Factory Workers' Union B1010
International Brotherhood of Electrical Workers,
5 East 19th St., N. Y. C., N. Y.
63 The production employees consisted of workers in the following classifications : wire-
men, assemblers, testers, helpers in the mechanical and cabinet departments, and cabinet
machine hands.
14 See footnote 3, supra.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a majority of the employees within an appropriate collective bar-
gaining unit designated the Brotherhood their representative for
purposes of collective bargaining, and, as provided in Section 9 (a)
of the Act, the Brotherhood by virtue thereof became the exclusive
representative of all the employees in such unit for purposes of col-
lective bargaining. Although the record shows that during the 6
days intervening between the consent election and the execution of
the contract three employees within the appropriate unit were pro-
moted to the position of foreman, we do not find this fact sufficient
to destroy the presumption of the Brotherhood's continued majority
representation. In any event, under the circumstances involved the
respondent at the time the contract was made could rely on a continu-
ation of the status of the Brotherhood as exclusive bargaining rep-
resentative of the production employees. The contract of October 29
covered by name all the employees then within the appropriate
collective bargaining unit.
The respondent and the Brotherhood contend that the agreement
of October 29, properly construed, provided that for the duration
thereof the respondent require membership in the Brotherhood as
a condition of employment of all production workers employed in
the plant on or after the effective date thereof, November 2, 1936.14
Clearly the respondent, if it intended on October 29 to impose such
a condition, could have done so without violating the Act, provided
an agreement was made with the Brotherhood to that effect.55 The
question presented, accordingly, is whether the agreement embodied
in and evidenced by the signed instrument of that date is such an
agreement. There is no showing that any other contract, written
or oral, was made by the parties, except one in September 1937.
We are of the opinion that the written agreement of October 29
is not subject to the construction advanced by the respondent and
the Brotherhood in so far as it is claimed that the respondent thereby
became obligated to require production workers in its employ on
November 2, 1936, to be and remain members of the Brotherhood.
Plainly no such undertaking is contained therein. Moreover, we
entertain grave doubt of the soundness of the claimed construction
in so far as it assumes a further promise by the respondent to require
new or additional production workers hired on or after November
2, 1936, to be members of the Brotherhood. Paragraph "Second"
of the agreement, in providing that the respondent "call upon the
Union for any help he may require" before obtaining workers else-
where, properly refers only to a preferential hiring on and after
"Garry, Bailey, and 11 of the 15 above -mentioned employees were in the respondent's
employ on November 2, 1936. The remaining four were hired thereafter.
ss See cases cited in footnote 50, supra.
ANSLEY RADIO CORPORATION 1055
November 2 of new or additional workers through the offices of the
Brotherhood.58
However, at the hearing clear and convincing proof was adduced
establishing that the respondent and the Brotherhood mutually in-
tended and agreed in the agreement which was reached on October
29 and which they supposed was fully expressed in the instrument
then executed that the respondent require of all production workers
in its employ on or after November 2, 1936, membership in the
Brotherhood as a condition of employment. The two persons who
engaged in the negotiations and signed the instrument on behalf of
the parties, Beedie and Ansley, testified unequivocally that such was
always the intent, agreement, and supposition of the respondent and
the Brotherhood. Their testimony in this respect is strongly corrob-
orated by several circumstances. On the evening of October 23, 1936,
after the results of the consent election conducted earlier that day
were known, a meeting was held by the Brotherhood for the respond-
ent's production employees in the course of which an announcement
was made to some 20 employees assembled that the Brotherhood would
negotiate a closed-shop contract with the respondent. A few days
later and before the execution of the agreement Ansley visited the
Regional Office of the Second Region and informed a staff member
that the Brotherhood had requested a closed-shop agreement with
the respondent. Following some discussion concerning the desir-
ability of such an undertaking Ansley stated that the respondent
would enter into the requested agreement. At this time a general
understanding prevailed among the production employees to the
effect that the agreement then being negotiated would provide for a
closed shop. Some of the workers who had voted against the Broth-
erhood in the election asked their foremen if they would be compelled
to become members. From the replies which they received they un-
derstood that "if the shop was under A. F. of L. contract, that the
contract would state that we would all have to belong to the union,
and there could not be some union members and some non-union
members." The record shows that within a week after the agree-
ment was executed all production employees, except one, had become
members of the Brotherhood, and the one who did not left his em-
ployment. On November 5, 1936, Beedie wrote to the Regional Of-
fice stating among other things that "The union has succeeded in
maintaining closed shop union agreement." . Until the formation
of the United neither the respondent, the Brotherhood, nor any of
the production employees at any time acted inconsistently with the
existence of an outstanding closed-shop agreement.
56 See Matter of Pilot Radio Corporation and United Electrical & Radio Workers of
America, 14 N. L. R. B. 1084, and footnote 20. Presumably those hired through the
Brotherhood ordinarily would be Brotherhood members.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are convinced from the foregoing, and find, that all production
workers employed by the respondent on November 2, 1936, then knew
and understood that the agreement of October 29 required member-
ship in the Brotherhood as a condition of employment. Of the 15
afore-mentioned persons who never were recalled to work or rein-
stated and employed, 11 fall within this class. The remaining four
persons are among the production workers who were not employed
at the plant on November 2 but were hired subsequently. These four
either were members of the Brotherhood at the time they were hired
or became members shortly thereafter, and all maintained their mem-
bership until the occurrence of the defection in May 1937. One was
told by his foreman at the time he was hired that the respondent had
an agreement with the Brotherhood and that he would have to join
that organization.57 Another knew that if he wasn't "a union man,"
he "could not go to work there." 58 Another first joined the Brother-
hood after his employment at the plant and after receiving a tem-
porary work permit from the Brotherhood.56 And the fourth was a
member of the Brotherhood, although not an employee of the respond-
ent, at the time the agreement was made.60 We believe that these
facts, considered in the light of the entire record, show that the four
employees had knowledge at the time of their employment that a con-
tract existed between the Brotherhood and the respondent requiring
them to be and remain -members of the Brotherhood as a condition
of employment."' As to other employees, besides the above four, who
were laid off on May 28 and may not have been' reinstated and em-
ployed because of non-membership in the Brotherhood, the record
is silent as to what knowledge they had of the required condition.
Since the complaint, as amended, was dismissed as to these employees
upon recommendation of the Trial Examiner '112 we may assume for
the purposes solely of this decision that they too had knowledge.
It is apparent, and we find, that through mutual mistake or inad-
vertence of the parties the written instrument of October 29 failed
to contain the promise of the respondent to require membership in
the Brotherhood as a condition of employment of all production
workers in its employ on or after November 2. It also is shown
that all these workers had knowledge of the requirement prior to the
57 The name of this employee is Rutkin.
The name of this employee is Wohlmuth.
69 The name of this employee is Jacobs.
80 The name of this employee is Schraier.
61 The agreement of October 29 recited that it was entered into by the Brotherhood
"for and in behalf of the said Union , and for and in behalf of its members, thereof now
employed and hereafter employed by the Employer . . We do not determine whether
the four employees hired after November 2, by joining the Brotherhood , became bound to
the closed -shop provision irrespective of whether they had actual knowledge thereof.
61 See Statement of the Case , supra.
ANSLEY RADIO CORPORATION 1057
defection in May 1937. Under these circumstances the agreement
of October 29 will be considered for the purposes of this proceeding
as if it expressly set forth the respondent's undertaking. Where
through mutual inadvertence or mistake of the parties to a written
collective agreement that agreement fails to express fully and accu-
rately the intention of the parties, the Board in a proper case may
consider and treat the written agreement as if it expressed what the
parties intended it to provide and supposed it did. Effectuation of
the purposes and policy of the Act requires that in such instances
the determination of whether the respondent has engaged in an unfair
labor practice should not depend upon a fact which is contrary to
the understanding of the employer and all persons concerned.
Thus, on June 10, 1937, when the respondent put into effect its
decision to reinstate and employ only production workers who were
Brotherhood members, thereby discharging in a body and refusing
to reinstate and employ all laid-off employees,63 including the 15
afore-mentioned, who were not members, there existed an agree-
ment 64 with the Brotherhood, as these employees knew, providing
that the respondent require of its production workers membership
in the Brotherhood as a condition of employment. The letter to the
respondent of June 7, above mentioned, constituted a request by the
Brotherhood for enforcement of the requirement against laid-off
employees who no longer were members, and the statement of June
10 by the respondent to the committee of the United was a sufficient
notice in that respect to all -such employees. The action of the re-
spondent must be deemed to have been and was in pursuance of this
request and the agreement.
The cases in which we have held not violative of the Act a dis-
charge or refusal to reinstate an employee, for non-membership in a
labor organization, pursuant to a valid, closed-shop agreement did
not involve the precise question presented." Here the discharge and
refusal to reinstate and employ concern a majority of the employees
within the appropriate bargaining unit covered by the agreement,
a majority who withdrew from membership in the contracting labor
organization and designated another labor organization as their ex-
clusive representative for purposes of collective bargaining. The
15 afore-mentioned employees constituted a majority of the 24 em-
"See Williams Coal Company and United Mine Workers of America, District No. 23,
11 N. L. R. B. 679, 652-654.
64 There is no contention by any of the parties that under applicable State law the
agreement , in so far as it provided for a closed shop, was illegal . Moreover, if a closed-
shop agreement were invalid under State law but came within the terms of the proviso
clause to Section 8 (3) it would not necessarily follow, and we do not determine, that
the making or performance thereof would constitute an unfair labor practice , within the
meaning of the Act.
65 See footnote 50, supra.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees laid off on May 28, such 24 employees comprising on May 28
and at all times thereafter to and including June 10, 1937, all the
respondent's employees within the appropriate collective bargaining
unit above found.
The agreement of October 29 was entered into by the Brotherhood
"for and in behalf of the said Union, and for and in behalf of its
members, thereof now employed and hereafter employed by the Em-
ployer . . ." Although the introductory paragragh of the agreement
does not name the Brotherhood but names "Radio Factory Workers'
Union Local 18609, American Federation of Labor" as the party, 16
the agreement was signed by the Brotherhood and, hence, must be
deemed to have been made by that organization as a party signatory.
In executing this agreement the Brotherhood acted as the exclusive
collective bargaining representative, within the meaning of Section
9 (a) of the Act, of all employees composing the appropriate unit
covered by the agreement when made. While the agreement recites
its having been entered into by the Brotherhood for its members
only, the inclusion of the closed-shop provision as a term thereof
shows that the Brotherhood acted as the statutory representatives'
Recitals of a contract should be read in the light of the entire con-
tract and given a construction, if reasonable, which would not render
the agreement invalid 68
There is nothing in the factual situation as it existed on June.10
which warrants a conclusion that the respondent could no longer
seek protection in the proviso clause of Section 8 (3) if, pursuant
to request of the Brotherhood and upon sufficient notice, it terminated
the employment of persons who voluntarily withdrew from the
Brotherhood, unless it be that the Act itself compels such a conclu-
sion . No claim or showing is made of any agreement or understand-
ing, express or implied, or of any condition imposed by the parties
to the agreement of October 27, or in whose behalf it was made,
limiting the duration of the respondent's obligation to employ Broth-
erhood members, except the provision for expiration of the agreement
of October 29 set forth in that agreement. Nor is there any showing
that the withdrawal of the substantial majority of the respondent's
employees from membership in the Brotherhood and their formation
of the United and designation of it as their bargaining agency
affected the continued existence of the Brotherhood as an organiza-
ati See footnote 51, supra. Certain evidence, as Respondent Exhibits 13 and 14, inti-
mates that the Brotherhood is the same labor organization as "Radio Factory Workers'
Union Local 18609, American Federation of Labor."
a+ Matter of Pacific Greyhound Lines and Amalgamated Association of Street , Electric
Railway and Motor Coach Employes of America, 9 N. L. R. B. 557, 568.
68 Matter of M. & J. Tracy, Inc. and Inland Boatmen 's Union, 12 N. L. R. B. 916, 928,
ANSLEY RADIO 'C'ORPORATION 1059
tion or its status as a chartered local of International Brotherhood
of Electrical Workers. In fact, the membership of the Brotherhood
on October 29 included, and since has included, many hundreds of
members employed by various manufacturers of radios and radio
parts located in New York City. Hence, to the extent that the
agreement of October 29 and the closed-shop provision therein con-
tained depended for their force upon such continued existence and
status, the defection would occasion no change 69 Nor would the
discharge of Garry and Bailey vitiate the provision for a closed shop.
Where an unfair labor practice constituting assistance to the con-
tracting labor organization is engaged in after the making of a valid
closed-shop agreement, the Act does not require that the contract
be voided if such assistance did not materially affect employees in
self-organization or collective bargaining beyond the restraint neces-
sarily inherent in the operation of the contract itself.
The question resolves itself finally into the following : Where an
employer has made a valid agreement with a labor organization
which is the exclusive collective bargaining representative of his em-
ployees within an appropriate collective bargaining unit covered by
such agreement when made, to require of all present and prospective
employees in the unit that they be members of that labor organiza-
tion as a condition of employment, can the employer without con-
travening the Act perform the undertaking, after request of the
labor organization and upon notice to the employees, by discharging
or refusing to reinstate a majority of the employees within the unit
who subsequent to the making of the agreement have voluntarily
withdrawn in a body from membership in the contracting labor
organization and have designated another labor organization as their
exclusive bargaining agency. I am of the opinion, as indicated below,
that the question as it pertains to the refusal of the respondent herein
to reinstate the laid-off employees on June 10 ought to be answered
in the affirmative, and the respondent's action held to have been per-
lnissive conduct under the proviso clause of Section 8 (3).70
The freedom guaranteed employees under the Act to form, join,
and assist labor organizations and to bargain collectively through
representatives of their own choosing, without economic or other
compulsion by the employer, is qualified by the proviso clause of
0° See Matter of M. and M. Wood Working Company and Plywood and Veneer Workers
Union Local No. 102, Affiliated with . International Woodworkers of America , 6 N. L. R. B.
372, where the Board treated certain action taken by a majority of the employees who
were members of a labor organization with which the employer had made a closed-shop
agreement as effectuating a legal withdrawal of that organization from affiliation with its
parent organization. The decision of the Board finding a violation of the Act rested on
this assumption of fact. See also Matter of Smith Wood Products, Inc. and Plywood and
Veneer Workers Local No. 2691, International Woodworkers of America, 7 N. L. R. B. 950.
70 See footnote 27, supra.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (3).71 The legislative history of this clause 72 as well as
its language shows that its purpose was to leave undisturbed by the
Act, except in two instances,73 a form of industrial relationship which
had won increasing acceptance by employers and had found widening
approval in the law of the several States. The legislative intent and
policy were to withhold what rights individual employees otherwise
might have had under the Act but for the proviso in order to permit
organized labor to seek and enter into this relationship where the
employer was willing to do so and local law offered no obstacle.
Although the employees who withdrew from the Brotherhood were
a. majority of the employees in the unit and had designated another
labor organization as their collective bargaining representative it
cannot be said that by virtue thereof the immunity accorded the
respondent by the proviso clause ceased under the Act and in con-
sequence the respondent's refusal to reinstate was violative of the
statute. If the Congress had intended to limit in this manner a
relationship which it sanctioned under the Act and to impose a
responsibility upon the employer for failure to recognize the limita-
tion, certainly such limitation would have been express. There is
no express limitation in the Act that the proviso is applicable only so
long as the contracting union maintains its majority. The proviso
clause declares that "nothing in this Act" shall preclude an em-
ployer from "making" a closed-shop agreement with a labor organ-
ization "if such labor organization is the representative of
the employees as provided in section 9 (a), in the appropriate col-
lective bargaining unit covered by such agreement when made."
Although the proviso relates specifically only to the making of the
71 See footnote 50, supra.
"Senate Report No. 573 , 74th Congress , 1st Sess ., Committee on Education and Labor:
The proviso attached to the third unfair -labor practice deals with the question of
the closed shop . . . . The reason for the insertion of the proviso is as follows :
According to some interpretations , the provision of section 7 (a) of the National
Industrial Recovery Act, assuring the freedom of employees "to organize and bar-
gain collectively through representatives of their own choosing ," was deemed to
illegalize the closed shop . The committee feels that this was not the intent of
Congress when it wrote section 7 ( a) ; that it is not the intent of Congress today;
and that it is not desirable to interfere in this drastic way with the laws of the
several States on this subject.
But to prevent similar misconceptions of this bill , the proviso in question states
that nothing in this bill . . . shall be held to prevent the making of closed-shop
agreements between employers and employees . In other words , the bill does noth-
ing to facilitate closed -shop agreements or to make them legal in any State where
they may be illegal ; it does not interfere with the status quo on this debatable
subject but leaves the way open - to such agreements as might now legally be con-
summated . . .
See also Congressional Record Appendix , June 19, 1935, p. 10137.
73 These two exceptions are, first , where the contracting labor organization was not at
time of the making of the agreement the exclusive representative under Section 9 (a),
and second , where it had been established , maintained , or assisted by action defined in
the Act as an unfair labor practice.
ANSLEY RADIO CORPORATION 1061
agreement, the necessary implication is that. the employer is protected
against a charge of discrimination under Section 8 (3) in carrying
out the closed-shop agreement as made, at least where, as here, the
agreement is for a reasonable period of time.
As has been stated many times by this Board and by the courts,
the Act contemplates the making of collective agreements between the
employer and the representatives of his employees. A prime purpose
of such agreements is to stabilize employment relations, to the benefit
of both employer and employees. The provision of Section 9 (a)
that representatives selected by a majority of the employees in an
appropriate collective bargaining unit shall be the exclusive bargain-
ing representative of the employees in that unit, must be read in the
light of this fundamental objective of the Act. Consequently, where
a collective agreement is validly made, for a reasonable duration, the
Board should recognize and uphold that agreement despite a shift of
sentiment among the employees whose representatives entered into
it. In my opinion, to hold that a closed-shop or other collective
agreement may be disrupted at any time that a majority of the
employees in the unit determine upon another bargaining representa-
tive would open the door wide to that very instability and uncertainty
in labor relations which the Act is designed to remove.74
Since I am of the opinion that the respondent's refusal to reinstate
the laid-off employees was privileged under the proviso clause of
Section 8 (3), and, therefore, that the complaint, as amended, should
be dismissed in this respect, and since Mr. Leiserson concurs in a
dismissal, we shall dismiss the complaint, as amended, in so far as it
alleges that the respondent refused and refuses to reinstate the em-
ployees and each of them who were laid off.75
We have held that an agreement in which the employer agrees with a labor organiza-
tion to require membership in that organization as a condition of employment is no bar
to an investigation and certification of representatives under Section 9 (c) of the Act,
where the agreement was made or renewed by the employer after formal notice of the claim
of a rival labor organization, Matter of Colonic Fibre Company, Inc. and Cohoes Knit
Goods Workers Union No. 21514, A. F. of L., 9 N. L. R. B. 658, 660; Matter of Showers
Brothers Company, Inc. and National Furniture Workers Local No. 1, of the Upholsterers
International Union of North America, Affiliated with the American Federation of Labor,
13 N. L. R. B. 829 ; or was made or renewed after the filing of a petition for investi-
gation and certification, Matter of Union Premier Food Stores, Inc., a Pennsylvania Cor-
poration, et at. and United Retail & Wholesale Employees of America, Affiliated with the
Congress of Industrial Organizations, 11 N. L. It. B. 270, 277; Matter of California Wool
Scouring Company and Textile Workers Organizing Committee, 5 N. L. R. B. 782, 785 ;
Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial
Association, 4 N. L. R. B. 1086, 1090; or where the agreement is about to expire or be
renewed, Matter of Quality Furniture Mfg. Co. and United Furniture Workers of America,
Local 576, C. I. 0., 8 N. L. R. B. 850, 853 ; Matter of Martin Bros. Box Company and
Toledo Industrial Union Council, 7 N. L. R. B. 88, 91. Nothing herein expressed would
limit or affect the decisions in the foregoing cases.
75 This dismissal does not apply to the respondent's refusal to reinstate Garry and
Bailey.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III5 B, above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policy of
the Act that the respondent be ordered to cease and desist from the
unfair labor practices in which we have found it to have engaged,
and, in aid of such order and as a means of removing and avoiding
the consequences of such practices, that the respondent be ordered
to take certain action more particularly described below.
We have found that the respondent on May 24, 1937, discharged
James Garry and Morris Bailey because they favored and assisted the
U. E. R. M. W. and attempted to induce other employees to join that
organization and to disassociate themselves from the Brotherhood,
thereby discriminating in regard to their hire and tenure of employ-
ment and encouraging membership in the Brotherhood and dis-
couraging membership in any other labor organization. Accordingly,
we shall order the respondent to cease and desist from engaging in
such unfair labor practices, and otherwise interfering with, restrain-
ing, and coercing its employees in the exercise of rights guaranteed
them under the Act.
Subsequent to their discharges Garry and Bailey withdrew from
the Brotherhood and joined the United. They are now members
of the United. It is not improbable that there exists at present an
agreement between the respondent and the Brotherhood in which
the respondent has agreed to employ only Brotherhood members.
The record shows that upon the expiration of the agreement of
October 29 a new agreement was made by the parties which they
claim contained a provision concerning the employment of Brother-
hood members similar to that in the October 29 agreement. In any
event, we are of the opinion that the change in affiliation of the
two men subsequent to their discriminatory discharges should not
operate to their prejudice and prevent the issuance by the Board
of its usual order restoring such persons to the positions they enjoyed
at the time the discrimination occurred, and otherwise making them
whole. It is. inconsonant with the policies of the Act that such a
change in union affiliation should be deemed to preclude the Board
from providing a remedy which in its opinion is necessary to effec-
ANSLEY RADIO CO'RPORATION 1063
tuate these policies. Accordingly, we shall order the respondent to
offer Garry and Bailey immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice, to
their seniority and other rights and privileges, and to make them
whole for any loss of pay they have suffered by reason of the respond-
ent's discriminatory termination of their employment, as aforesaid,
by payment to each of them of a sum of money equal to that which
he normally would have earned as wages from May 24, 1937, to
the date of the offer of reinstatement, less his net earnings 76 during
said period.
The respondent contended at the hearing that Garry and Bailey
should not be reinstated for the reason that they allegedly were
involved in acts of violence committed against members of the
Brotherhood in its employ in connection with the picketing of the
plant after June 10. Offer of proof to that effect was made by the
respondent and refused by the Trial Examiner upon objection by
the Brotherhood and the Board. We note that the answer filed
by the respondent herein failed to contain a statement of either the
facts constituting the asserted defense or of the defense itself,
although such matters took place prior to such filing. The respond-
ent admitted that neither of the two men had been convicted or
sentenced in connection with the alleged violence.77 It did not claim
that they disobeyed the injunction which is alleged to have issued,
or that their misconduct was directed toward seizure of, or constituted
a tort against, the respondent's property.71 We do not believe that
acts of violence of the character involved, occurring in connection
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for the unlawful
termination of his employment and the consequent necessity of his seeking employment
elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Car-
penters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L.
R. B. 440. Monies received for work performed upon Federal , State, county , municipal,
or other work -relief projects are not considered as earnings , but as provided below in the
Order, shall be deducted from the sum due the employee , and the amount thereof shall be
paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or
other government or governments which supplied the funds for said work -relief projects.
77 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N. L. It. B. 219 , 387-388, enf 'd as mod., Republic Steel Corporation v. N. L. R. B.,
107 F. (2d) 472 (C. C. A. 3).
78 See N. L. R . B. v. Arthur L. Colten and Abe J. Colman, Co-Partners doing business as
Kiddie Kover Manufacturing Company, 105 F . ( 2d) 179, 183 (C. C. A. 6 ), enf'g Matter of
Arthur L. Colten and A. J. Colman, etc . and Amalgamated Clothing Workers of America,
6 N. L. It . B. 355 ; N. L. R. B . v. Stackpole Carbon Company, 105 F. ( 2d) 167, 176-7
(C. C. A. 3), mod'g and enf 'g as mod. Matter of Stackpole Carbon Company and United
Electrical & Radio Workers of America, Local No. 502 , 6 N. L. It . B. 171. Cf. N. L. R. B. v.
Remington Rand, Inc., 94 F. ( 2d) 862 , 872-3 . (C. C. A. 2), cert. denied , 304 U. S. 576,
enf'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the
District Council Office Equipment Workers, 2 N. L. It. B. 626; N. L. R. B. v. Carlisle Lum-
ber Co., 94 F . ( 2d) 138, 146 , (C. C. A. 9), cert . denied, 304 U. S. 575 , enf'g Matter of
Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, Onalaska,
and Associated Employees of Onalaska, Inc ., Intervener, 2 N. L. R. B. 248.
283029-41-vol. 18 68
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with picketing and in the midst of industrial strife, show unfitness
for employment. Under all the circumstances we are of the opinion
that the reinstatement of Garry and Bailey is necessary, as stated
above, as a means of removing and avoiding the consequences of
the respondent's unfair labor practices and to effectuate the policies
of the Act.
VI. THE PETITION
As stated above, we will dismiss the complaint, as amended, in so
far as it alleges that the respondent engaged in unfair labor prac-
tices in refusing on and after June 10, 1937, to reinstate and employ
the laid-off employees who prior to that date withdrew from the
Brotherhood and joined the United and thereafter never resumed
affiliation with the Brotherhood. All the persons, except Garry
and Bailey, shown by the evidence to desire representation by the
U. E. R. M. W. for purposes of collective bargaining with the re-
spondent come within this group of persons refused reinstatement
and employment. It is apparent from the record that the positions
of all of these persons were filled by November 12, 1937. What their
relationship with the respondent will be in the light of this Decision
is highly speculative. Accordingly, I am of the opinion that the
petition should be dismissed without prejudice, on the ground that
the record does not present a justiciable question concerning the rep-
resentation of employees of the respondent. Mr. Smith and Mr.
Leiserson agree that the petition should be dismissed.
Upon the basis of the foregoing findings of fact and upon the.
entire record in the proceedings, the Board makes the following :
CONCLUSIONS OF LAW
1. Radio Factory Workers' Union, Local B-1010 of the Inter-
national Brotherhood of Electrical Workers; Local 1206 of United
Electrical, Radio & Machine Workers of America; and United Elec-
trical, Radio & Machine Workers of America, formerly known as
United Electrical .& Radio Workers of America, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act. Local 1221
of United Electrical & Radio Workers of America was a labor or-
ganization, within the meaning of said section.
2. By discriminating in regard to the hire and tenure of employ-
ment of James Garry and Morris Bailey, and thereby discouraging
membership in a labor organization and encouraging membership
in Radio Factory Workers' Union, Local B-1010 of the International
Brotherhood of Electrical Workers, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
ANSLE'Y RADIO CORPORATION 1065
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. No question concerning representation of employees of Ansley
Radio Corporation for the purposes of collective bargaining arises,
within the meaning of Section 9 (c) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Ansley Radio Corporation, New York City, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 1206 of United Electrical,
Radio & Machine Workers of America, or any other labor organiza-
tion of its employees, by discriminating in regard to hire or tenure
of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, and assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid and protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to James Garry and Morris Bailey, and to each of
them, immediate and full reinstatement to their former or. substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges ;
(b) Make whole James Garry and Morris Bailey, and each of
them, for any loss of pay they have suffered by reason of the re-
spondent's discriminatory termination of their employment, by pay-
ment to each of them of a sum of money equal to that which he
normally would have earned as wages from May 24, 1937, to the
date of the offer of reinstatement, less his net earnings during said
period,79 deducting, however, from the amount otherwise due to each
°D See footnote 7G, supra.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the said employees, monies received by said employee during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount, so deducted,
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(c) Immediately post, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, in conspicuous
places throughout its plant, notices to its employees stating that the
respondent will cease and desist in the manner set forth in 1 (a)
and (b), and that it will take the affirmative action set forth in
2 (a) and (b), of this Order;
(d) Notify the Regional Director for the Second Region in writ-
ing, within fifteen (15) days from the date of this Order, what steps
the respondent has taken to comply therewith :
PROVIDED, HOWEVER, that the provisions of this Order shall be
subject to any valid contract now in effect or subsequently entered
into between the respondent and any labor organization, which con-
tract requires as a condition of employment membership in such
organization.
AND IT IS FURTIIER ORDERED that the complaint, as amended, be,
and it hereby is, dismissed in so far as it alleges that the respondent,
by locking out or refusing to reinstate the employees named in the
complaint, as amended, other than James Garry and Morris .Bailey,
and by keeping union meetings and meeting places under surveillance,
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) and (3) of the Act.
By virtue of Section 9 (c) of the National Labor Relations Act, and
pursuant to Article III, Section 8, of National Labor Relations Board
Rules and Regulations-Series 2,
IT IS HEREBY FURTHER ORDERED that the petition for investigation and
certification of representatives of employees of Ansley Radio Corpora-
tion, New York City, filed by United Electrical & Radio Workers of
America, how known as United Electrical, Radio & Machine Workers
of America, be, and it hereby is, dismissed, without prejudice.
MR. EDWIN S. SMITH, concurring in part and dissenting in part:
I concur in the findings and decision of the Board relating to the
discharge on May 24, 1937, of James Garry and Morris Bailey. It is
plain that the respondent rid itself of these employees because it be-
lieved that their espousal among their fellow workers of a change in
affiliation from the Brotherhood to the U. E. R. M. W. threatened the
respondent's existing relationship with the Brotherhood. The proviso
clause of Section 8 (3) of the Act does not afford a warrant for this
ANSLEY RADIO CORPORATION 1067
dismissal. While the respondent had made a valid agreement condi-
tioning employment upon membership in the Brotherhood, perform-
ance of the agreement was not involved in the discharge, for both
Garry and Bailey were then Brotherhood members. Merely because
an employer has entered into an agreement of the kind mentioned in
the proviso clause, he is not licensed to thwart a nascent movement for
a change in affiliation, or of collective bargaining representative, by
using his power of discharge to make an example of the leaders of such
a movement.
I also concur in the subsidiary findings of fact set forth in the De-
cision respecting the respondent's lay-off of the production employees
on May 28, 1937, and its refusal to reinstate those of the laid-off em-
ployees who were not Brotherhood members. However, I am not in
accord with the opinion of Chairman Madden that the respondent in
committing these acts did not engage in any unfair labor practice.
The Board finds that the respondent laid off the production em-
ployees for the purpose of preventing, pursuant to imminent demand
by the Brotherhood, a discharge of the majority of these employees who
had joined the United and had thereby indicated their withdrawal
from the Brotherhood. The opinion of the Chairman assumes that by
virtue of the closed-shop provision of the October 29 contract, and
under the proviso clause of Section 8 (3), the Brotherhood lawfully
could have insisted upon and the respondent properly could have
undertaken to replace these employees with new employees who were
Brotherhood members; and that a lay-off to forestall such a con-
tingency would not be a discriminatory act. I do not think that this
could have legally been done. As stated below, I am of the opinion
that an otherwise valid agreement of an employer with a labor organi-
zation to require membership in that organization as a condition of
employment becomes inoperative upon a change in choice of collective
bargaining representative by a majority of the employees within the
appropriate collective bargaining unit covered by the agreement.
Such a change occurred here prior to the lay-off when a majority of the
production employees designated the United as their bargaining rep-
resentative. Although the respondent in laying off the employees en-
tertained an honest belief that they thereby were being afforded a
respite against enforcement of the closed-shop provision of the con-
tract, nevertheless, because the lay-off was occasioned by the employees'
shift of affiliation, it would constitute an unfair labor practice, within
the meaning of Section 8 (3), and also of Section 8 (1).
As the Board finds, between May 24 and 26, 1937, 20 of the respond-
ent's production workers joined the United and designated that labor
organization as their collective bargaining representative. These
workers were a substantial majority of all the employees, 24 in num-
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her, within the appropriate collective bargaining unit covered by the
contract of October 29 and by its closed-shop provision. On June 10,
1937, the respondent resumed production operations at its plant and
took the position that for-the duration of the contract none of the
employees previously laid off who was not a loyal Brotherhood member
would be reinstated to his former position. Unless this action by the
respondent was valid under the proviso clause, all these employees
were thereby, in effect, discriminatorily discharged on June 10.11"
There is no issue here as to whether the respondent independently
could have refused reinstatement to non-members of the Brotherhood
without a request therefor by the labor organization with which the
closed-shop agreement was made. Such a request was, in fact, made
by the Brotherhood in its letter of June 7 to the respondent. Nor is
there involved the effect upon a closed-shop agreement of a dissolution
of the contracting labor organization. The withdrawal of a substan-
tial number of the production employees from the Brotherhood and
their designation of the United as bargaining representative did not
affect the continuance of the Brotherhood as a labor organization. The
question is simply whether an employer who has made a valid closed-
shop agreement may properly enforce the terms of the closed-shop
upon request of the contracting union after and at a time when a ma-
jority of the employees in the appropriate collective bargaining unit
covered by the closed-shop provision have designated another union
exclusively to represent them for collective bargaining purposes. I
am of the opinion that the employer cannot lawfully do so ; that neither
the proviso clause of Section 8 (3) nor any other provision of the Act
permits him to engage in such conduct..
The opinion which Chairman Madden expresses that the refusal to
reinstate the laid-off employees did not violate the Act rests upon an
application of the proviso clause of Section 8 (3). In sum, it is stated
that the proviso was intended to exempt closed-shop contracts and
similar agreements from the prohibition against discrimination em-
bodied in Section 8 (3) and that the proviso cannot reasonably be con-
strued to remain operative only so long as a majority of the employees
covered by the agreement do not designate a collective bargaining
representative other than the contracting union to represent them. I
am satisfied that the proviso was intended to be, and should be, so
limited.
We are met with an apparent conflict in principle and application
of two provisions of the Act. The proviso clause purports to free
closed-shop and similar agreements from the limitations of the Act
and to permit them what status, and legal significance they have
80 See cases cited in footnote 48 of the Decision.
ANSLD'Y RADIO CORPORATION 1069
acquired under local law. However, Section 9 (a) of the Act pro-
vides that representatives designated or selected for the purpose of
collective bargaining by the majority of the employees in a unit
appropriate for such purpose shall be the exclusive representative of
all the employees in such unit for the purposes of collective
bargaining.81 It is clear to me that in resolving this conflict and
reaching a proper construction, emphasis should be placed on the
statutory right in the majority of the employees freely to choose an
exclusive collective bargaining representative, not on the asserted
privilege in the minority or the contracting labor organization, acting
through the employer, to enforce membership in the contracting
union. The doctrine of majority rule which Section 9 (a) enunciates
is a fundamental principle of the statute. In this principle is found
warrant for imposing upon employers the duty to bargain collec-
tively; and in the performance of that duty lies avoidance of indus-
trial strife and unrest. The Board should be reluctant in any case
to hold the majority of the employees to be without voice through a
representative that in the ordinary application of the Act could speak
for all employees. Consequently, when the majority of the employees
in the appropriate collective bargaining unit covered by a closed-shop
provision designate a bargaining representative other than the con-
tracting union to represent them, the closed-shop provision should
terminate. Otherwise, the majority of the employees, to preserve
their jobs, must remain attached to a representative which they have
repudiated. _ This makes self-organization, with all its beneficial
consequences as proclaimed by the Act, a completely dead letter.
Congress, in my opinion, could not have intended to put into the
hands of any labor organization or any employer a legal weapon to
blot out by discharge a new majority, in deference to a contract
made on behalf of the same discharged individuals by a bargaining
agent they no longer desire. A more absolute disregard of the prin-
ciple of majority rule could hardly be devised.
I am of the opinion that respondent should be ordered to offer
reinstatement to the employees named in the complaint whom the
respondent discriminatorily laid off and refused to reinstate after
the lay-off. However, because the legal rights and obligations of the
respondent under the contract of October 29 were in doubt, and be-
cause the record indicates that the respondent's conduct was in large
part based upon an honest belief that it was not thereby violating the
el The proviso declares that "nothing in this Act" shall preclude an employer from en-
tering into a closed -shop agreement , subject to specified conditions . I do not believe that
the words , "nothing in this Act" establish that the principle embodied in the proviso Is
intended to be paramount over that embodied in Section 9 (a), for the language of the
proviso Is express only as to the making of the contract and not as to the status of the
contract where conditions have subsequently changed.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, the respondent should not be required to make the employees
whole for any loss of pay they have. sustained. 82
With regard to the petition of the U. E. R. M. W., I concur in the
dismissal thereof, without prejudice, on the ground that more than
2 years have elapsed since it was filed, and the situation concerning
representation as it currently exists at the respondent's plant is not
before the Board.
MR. WILLIAM M. LEISERSON, concurring in part and dissenting in
part :
I am of the opinion that the entire proceedings should be dismissed.
8' See Matter of M. & M. Wood Working Company and Plywood and Veneer Workers
Union, Local No. 102, affi liated with International Woodworkers of America , 6 N. L. R. R.
372, 383.