E. L. Bruce Co.

National Labor Relations Board - Board Decisions

Dec 12, 1947

75 N.L.R.B. 522 (N.L.R.B. 1947)

In the Matter of E. L. BRUCE COMPANY and INTERNATIONAL BROTHER-
HOOD OF FIREMEN & OILERS, LOCAL 954, A. F. OF L.
Case No. 15-C-1034.-Decided December 13, 1947
31r. Jerome A. Reiner, for the Board.
Canale, Glankler, Loch cC Little, by Messrs. Hamilton F. Little and
F. H. O'Connor, of Memphis, Tenn., for the respondent.
Mr. Harold L. Colvin, of Louisville, Ky:, for the Firemen & Oilers
Union.
Taylor, Higgins, Koenig & Windham, by Messrs. Fred G. Koenig
and J. C. Barrett, of Birmingham, Ala., Mr. W. 7'. Fount, of Memphis,
Tenn., and Mr. Charles E. Kay, of Frazier, Tenn., for the Carpenters
Union.
DECISION
AND
ORDER'
On October 21, 1946, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondent had not engaged in the unfair labor practices affecting
commerce alleged in the complaint, and recommending that the com-
plaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, counsel for the
Board filed exceptions to the Intermediate Report and a supporting
brief, and the Carpenters Union filed a brief and the respondent a
reply brief in support of the Intermediate Report. On January 21,
1947, the Board at Washington, D. C., heard oral argument, in which
the respondent and the Carpenters Union participated.
On September 19, 1947, the Board, acting pursuant to Section 3
(b) of the Act, as amended, delegated to Chairman Herzog and
Members Houston and Reynolds, who had heard the oral argument
herein, all the powers which the Board itself might exercise in this case.
The Board has considered the rulings of the Trial Examiner at
the hearing, and finds that no prejudicial error was colmnitted.. The
' The Boaid has Dower to issue a decision and cider in a case such as the instant one,
where the charging union may not have complied with the filing requirements specified in
Section 9 ( f), (g), and ( h) of the National Labor Relations Act, as amended See Matter
of Marshall and Bruce Conpany, 75 N L. R B. 90.
75N L R B, No. 62.
522
E. L. BRUCE COMPANY 523
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs , and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner insofar as they are consistent with this Decision and Order. 2
The Trial Examiner found that the respondent did not violate
the Act in discharging the complainants . We do not agree. By
April 9, 1945 , the Carpenters Union had accepted all the complainants,
as de facto members .3 Likewise by that date , the complainants, while
continuing their de facto membership in the Carpenters Union, had
also become affiliated with the rival Firemen & Oilers Union . On that
date, which was near the automatic renewal date of the then existing
agreement between the Carpenters Union and the respondent, Kay,,
the Carpenters Union representative who later demanded the dis-
charges, had a conversation with O'Connor, the assistant to the re-
spondent 's president in charge of labor relations . In this conversa-
tion , Kay stated that the firemen and helpers , who are the complainants
in this case, had joined the Firemen & Oilers Union, and that a de-
mand would be made for their discharge unless they took the obliga-
tion in the Carpenters Union-a long -standing membership require-
ment. The obligation , as O'Connor must have inferred from Kay's
conversation , would have bound the complainants to abandon their
membership in the Firemen & Oilers U11101 1 .4 Yet O'Connor called
Sisco, one of the firemen and helpers , into his office and advised hint
that the entire group should take the obligation or risk discharge-
When Sisco replied that the "one reason " for the group 's refusal
to'take the obligation was "because ... they were going along with the
Firemen & Oilers [Union ]," as O'Connor admitted at the hearing,
O'Connor nevertheless promptly complied with the demand of the
Carpenters Union that the respondent discharge the complainants un-
der the terms of the union -shop agreement , on the alleged ground of
"bad standing" in the Carpenters Union.5 Under similar circum-
2 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which
the complaint herein alleged were violated , are continued in Section 8 (a) (1) and (3)
of the Act as amended by the Labor Management Relations Act, 1947.
3In addition to the fact that the Carpenters Union had been accepting the complainants'
clues, as the respondent knew because of the check -off, we find, contrary to the Trial Exam-
iner , that at least one of the complainants had attended approximately six meetings of the
Carpenters Union and had participated in the voting at those meetings, and that each of
the complainants was permitted by the Carpenters Union to enjoy another and most in-
poitant membership privilege , won king at the all-union plant here involved
4 Moreover, uncontradncted and ciedible testimony in the record shows that, after the
firemen and helpers had joined the Fiemen & Oilers Union , a Carpenters Union representa-
tive had thi eatened them Ni nth discharge if they "don't get out of the Fi remen & Oilers" ;
and another repiesentative admitted at the hearing that members were required to "chop
membership in any other organization they belonged to."
we find that the respondent discharged complainants Lott and Odum on on about
May 14, 1945, and not on on about April 11, 1945 , as found in the Intermediate Report
0
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, we held in the Rutland Court case 6 that an agreement re-
quiring membership in a certain labor organization as a condition
of employment , although lawfully made, could not serve as a device
for depriving employees of their freedom to designate another labor
organization as their collective bargaining representative for the pe-
riod following the termination of the agreement.
On the foregoing facts, the Trial Examiner concluded that the prin-
ciple of the Rutland Court case was inapplicable on two alternative
grounds: ( 1) The complainants intended to supplant the Carpenters
Union with the Firemen & Oilers Union before the termination of the
existing agreement and thus, as the Board held in the Southwestern
Portland Cement case,' were not entitled to protection against the
requirement of membership in the Carpenters Union. ( 2) The dis-
criminatory motive of the Carpenters Union in securing the discharges
was "irrelevant ," because the four complainants who had failed and
refused to take the obligation had never completed the steps necessary
to bring themselves into compliance with the Carpenters Union's
membership requirements , and the respondent justifiably although er-
roneously thought that the other two complainants had similarly failed
to comply with the membership requirements.
We do not agree with the Trial Examiner. As to his first ground
of distinction, we are of the opinion that the Southwestern Portland
Cement case is not applicable to the facts here present , for the employee
there was expelled from union membership for rival union activity
early in the term of a union -security agreement which still had more
than 8 months to run at the time of his discharge ; it was the early
timing of the rival activity which was a major factor in persuading
us that it was calculated to replace the contracting union during,
rather than after , the term of the contract . In the present case, the
complainants were not penalized for allegedly seeking to replace the
Carpenters Union before the end of its contract term. On the con-
trary, the discharges occurred near the expiration of the term, and
were demanded by the Carpenters Union because of the complainants'
refusal to abandon the Firemen & Oilers Union at that time.
As to the Trial Examiner 's second ground of distinction , we believe
that it overlooks the purpose of the Rutland Court principle , to protect
the employees ' freedom of choice. The record shows , and the Trial
Examiner found without objection , that Lott and Odum, who had
previously taken the oath of obligation in the Carpenters Union, were
nevertheless expelled from union membership and discharged by the
respondent because, shortly before the termination of the contract be-
4 Matter of Rutland Court Owners, Inc ., 44 N. L R. B. 587 , 46 N. L. R. B. 1040.
7 Matter of Southwestern Portland Cement Co ., 65 N. L R. B. I.
E. L. BRUCE COMPANY 525
tween the respondent and the Carpenters Union, they refused to aban-
don the Firemen & Oilers Union. This is, as we find, a Rutland Court
case. The other four complainants were discharged because, shortly
before the termination of the same contract, they refused to take an
oath which would have required them to abandon the Firemen & Oilers
Union-the same oath which Lott and Odum had previously taken.
Had they taken the oath, they would undoubtedly have been expelled
and discharged, just as Lott and Odum were, and for the same reason.
^A labor organization cannot, by means of its membership rules, restrict
the freedom of employees to designate a new collective bargaining
representative-a freedom which, as we held in the Rutland Court
case, the Act confers on them. It follows that the respondent's
erroneous belief that Lott and Oduin had, like the four other com-
plainants, refused to take the obligation, did not justify their
discharge.
The respondent argues, in part, that the complainants, a small group
at a single plant, were improperly seeking to split themselves off from
the established multi-plant collective bargaining unit which had there-
tofore included them, and that their activity, like that involved in the
Southwestern Portland Cement case, is therefore not entitled to protec-
tion under the Act. This assumes the inappropriateness of the col-
lective bargaining unit they sought to establish. In any event, the
argument proves too much, for it would remove from the protection of
the Act the self-organizational activities of employees who have
once been incliuled in a unit found appropriate for collective bargain-
ing purposes, but who seek to persuade the Board to modify that unit.
Such activities customarily precede presentation to the Board of ques-
tions as to appropriateness of units or as to whether previously estab-
lished bargaining units should be modified-questions best decided in
proceedings under the Act after the organizational activities out of
which they arise have taken place. We find no warrant in the statute
for holding that such activities are not protected.
It is also argued that discrimination is disproved by the fact that
the Carpenters Union demanded and secured the discharge of ship-
ping department employee Thompson along with that of the complain-
ants, and that Thompson was not shown to have been involved in any
rival union activity. We find no merit in this argument. No charge
was filed alleging discrimination in Thompson's discharge, no such
allegation was included in the conmplaint, and the issue was not liti-
gated. But even if Thompson's expulsion and discharge was found
to be non-discriminatory, the finding would not disprove discrimina-
tion as to the complainants. Nor is discrimination disproved by the
fact that the Carpenters Union subsequently readmitted three of the
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plainants ( Sisco, Wells, and Stroggins ) to membership upon their
taking the obligation , and that the respondent thereupon reinstated
them. The record shows that these complainants were readmitted and
reinstated only after they had abandoned their membership in the
Firemen S- Oilers Union.
We have considered the provision in Section 10 (c) of the Act, as
amended, which authorizes the Board to require back pay of the labor
organization responsible for the discrimination suffered by an
employee.
We are of the opinion that it cannot be given retroactive effect so
as to govern the result in the present case. The discharges were
effected in 1945, and did not at that time constitute unfair labor prac-
tices on the part of the Carpenters Union . Moreover , no charge was
filed and no complaint issued against the Carpenters Union, and we
would therefore be without power to issue an order directed against
that organization even if we considered it appropriate to do so.,,
Upon the entire record, we find, contrary to the Trial Examiner,
that the respondent discharged Sisco, Johnson , Wells, Stroggins, Lott,
and Odum in violation of Section 8 (1) and ( 3) of the Act.
THE REMEDY
Having found that the respondent discharged Sisco, Johnson, Wells,
Stroggins, Lott, and Odum in violation of the Act, we shall order the
respondent to reinstate such of them as have not yet been reinstated
and to snake them all whole, except that in computing back pay and
net earnings the period between the Intermediate Report and th3
Decision and Order herein shall be excludedy
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, E. L. Bruce Com-
pany, Memphis, Tennessee, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from discouraging membership in International
Brotherhood of Firemen & Oilers, Local 954, A. F. of L., or in any
other labor organization, of its employees, or encouraging membership
in United Brotherhood of Carpenters and Joiners of America, A. F.
8 Cf. Consolidated Edison Company v N L R B. 305 U S 197 Our reasons for be-
lieving that no such power was Nested in the Boaid undei the National Labo Relations
Act prior to the 1947 amendments are stated in the majority opinion in the Lewis Meier
case, 73 N L R B 520
0 See, e. g, Matter of Colgate-Palmolive -Peet Company, 70 N L R B 1202
E. L. BRUCE COMPANY 527
of L., or in any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees, or by discriminating
in any othel• m anner in regard to their hire or tenure of employment
or any term or condition of their employment, for engaging in activi-
ties directed toward the designation of a new collective bargaining
representative at an appropriate time.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Oza Johnson, Roosevelt Lott, and Charles Odum imme-
diate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and
privileges; 10
(b) Make whole Oza Johnson, Roosevelt Lott, and Charles Odum
for any loss of pay they have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount which he normally would have earned
as wages during the period front the date of his discharge to the date
of the Intermediate Report herein, and during the period from the
date of the Decision and Order herein to the date of the respondent's
offer of reinstatement, less his net earnings during such periods; 11
(c) Make whole Lonnie Sisco, Henry Wells, and Willie Stroggins
for any loss of pay they have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount which he normally would have earned
as wages during the period from the date of his discharge to the date
of his reinstatement, less his net earnings during such period;
(d) Post at all its plants covered by the union-shop agreement with
United Brotherhood of Carpenters and Joiners of America, A. F. of L.,
copies of the notice attached hereto, marked "Appendix A." 12 Copies
of said -notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the respondent's
representative, be posted immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
10 In accordance with our consistent interpietation of the term, the expression former
or substantially equivalent position " is intended to mean " tormer position wherever possi-
ble, but if such position is no longer in existence , then to a substantially equivalent posi-
tion " See Mattei of The Chase National Banb of the City or New Yoil, San, Juan, Puerto
Rico, Blanch , 65 N L R. B 827
ii By "net eat rings" 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 his unlawful
discharge and the consequent necessity of his seeking employment elsewheie See Matter
of Crossett Limber Company, 8 N L It B 440 Monies received for work performed
upon Federal State , COMM' ,nmunicipal , or other work relief projects shall be considered
as earnings See Nepnblae Steel Corpoi ation v N L R B, 311 U S 7
ii In the event that this Order is enforced by decree of a Circuit Court of Appeals, theie
shall be insetted in the notice , before the words "A Decision and Order ," the words "A
Decree of the United States Circuit Court of Appeals enforcing "
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(e) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (1) of the Act other than by
the discharges herein, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National-Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and
privileges previously enjoyed:
Oza Johnson Roosevelt Lott . Charles Odum
WE WILL MAKE WHOLE the employees named below for any loss
of pay suffered as a result of the discrimination, as set forth in
the Board's Decision and Order :
Lonnie Sisco Henry Wells Roosevelt Lott
Oza Johnson Willie Stroggins Charles Odum
WE WILL NOT discourage membership in International Brother-
hood of Firemen & Oilers, Local 954, A. F. of L., or any other labor
organization, or encourage membership in United Brotherhood of
Carpenters and Joiners of America, A. F. of L., or any other labor
organization, by discharging or refusing to reinstate any of our
employees or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
their employment, for engaging in activities directed toward the
designation of a new collective bargaining representative at an
appropriate time.
E. L. BRUCE COMPANY,
Dated---------------------- By --------------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
I
E. L. BRUCE COMPANY 529
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
MEMBER REYNOLDS dissenting in part :
I concur with the findings of fact made by my colleagues. How-
ever, those findings lead me to the conclusion that the Carpenters Union
rather than the respondent is the party chiefly responsible for the
violations found herein. It was the union, through its threat of
economic pressure, which urged the respondent to its illegal conduct,
and it is that union which should therefore bear the burden at least
in part of making whole the insured employees.
I am in agreement that the provision of Section 10 (c) of the Act,
as amended, which authorizes the Board to require back pay of labor
organizations responsible for discrimination such as is found in this
case, does not apply where the discrimination took place, as here, prior
to August 22, 1947. Nevertheless, for the reasons stated in my dis-
senting opinion in Matter of Lewis Meier c0 Company, 73 N. L. R. B.
520, I would dismiss the complaint herein.
INTERMEDIATE REPORT
Mr. Jerome A. Reiner , for the Board.
Messrs. Hamilton E. Little and F H . O'Connor , of Memphis , Tenn, for the
respondent.
Mr Harold L . Colvin, of Louisville , Icy, for the Firemen and Oilers.
jifessrs /i'rad G Koen , iq a nd J C Ban ett , of Birmingham , Ala., Mr IV. T.
Yount, of Memphis , Tenn ., and Mi. Charles E Kay, of Frazier , Tenn, for the
Carpenters.
STATEMENT OF THE CASE
Upon an amended charge filed on May 28, 1945, by International Brotherhood
of Firemen & Oilers, Local 954, affiliated with the American Federation of Labor,
herein called the Firemen and Oilers, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Fifteenth Region (New Orleans,
Louisiana), issued its complaint dated August 22, 1946, against E. L. Bruce
Company, herein called the respondent, alleging 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 National Labor
Relations Act, 49 Stat. 449, herein called the Act.
With regard to the unfair labor practices, the complaint alleged in substance
that respondent: (1) from about Maich 1945, to the date of the complaupt,
questioned and warned employees concerning their membership in the Firemen
and Oilers, and (2) during the months of April and May 1945, discharged Lonnie
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sisco, Oza Johnson, Henry Wells, Willie Stroggiis, Roosevelt Lott, and Charlie
Odumr, and has since failed and refused to reinstate them, because they joined and
assisted the Firemen and Oilers, and engaged in other concerted activity for the
purposes of collective bargaining and other mutual aid and protection.
On aeptember 9, 1946, respondent filed an answer admitting some of the allega-
tions of the complaint but denying that it had engaged in any unfair labor prac-
tices As an affirmative defense to the discharges, respondent's answer stated
that the above-named employees were discharged because of the demand of
Lumber and Sawmill Branch of the United Brotherhood of Carpenters and Joiners
,of America, herein called the Carpenters, with whom the respondent has a union-
shop agreement.
Pursuant to notice, a hearing was held on September 23 and 24, 1946, at
14emphis, `Tennessee, before I-brace A. Rickel, the undersigned Trial Examiner
duly appointed by the Chief Trial Examiner. Upon the opening of the hearing
the undersigned granted without objection a request by Local Unions Nos 2523,
2846. 3124, 2825, 2964, 2639, and 2598 of the Carpenters to intervene The Board
and respondent were represented by counsel and participated in the hearing
The Firemen and Oilers and the Carpenters were represented by officers and
organizers. Full opportunity to be heaid and to examine and cross-examine
witnesses and to introduce evidence bearing upon the issues was afforded all
parties.
At the conclusion of the hearing the undersigned granted, without objection,
a motion by counsel for the Board to conform the pleadings to the proof in
formal matters and reserved ruling on a motion by respondent's counsel, in
which lie was joined by representatives of the Carpenters, to dismiss the com-
plaint This motion is disposed of by the recommendations hereinafter made.
The parties were advised that they might argue orally and might request the
privilege of filing briefs and/or proposed findings of fact and conclusions of law
with the Trial Examiner Counsel foi the patties engaged in oral argument.
No request was made to file briefs or proposed findings of fact and conclusions
of law.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation having its principal office and place of
business in Memphis, Tennessee, where it is engaged in the manufacture of
hardwood flooring, finished furniture, prefabricated houses, and related products.
During the period from July 1 to December 31, 1944, which is representative of
its operations at all times material herein, respondent purchased raw materials
consisting principally of lumber, in the amount of $873,000, approximately 30
percent of which was shipped to its Memphis plant from points outside the State
of Tennessee During the same period respondent manufactured and sold
finished products from its Memphis plant in the amount of over three million
dollars, approximately 90 percent of which was sold and transported to and
throogh States of the United States other than the State of Tennessee. Re-
spondent admits that it is engaged in commerce within the meaning of the Act.
E. L. BRUCE COMPANY
II. THE ORGANIZATIONS INVOLVED
531
Liteinational Brotherhood of Firemen and Oilers, Local 954, and Lumber and
Sawmill Branch of the United Brotherhood of Carpenters and Joiners of America,
and Local Unions Nos. 2523, 2846, 3124, 2825, 2964, 2639, and 2598, thereof, ,are
labor organizations admitting to membership employees of the respondent. Both
the Firemen and Oilers and the Carpenters are affiliated with the American
Federation of Labor
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The discharges
There is no substantial dispute as to the facts in this case. The question
presented is whether respondent engaged in an unfair labor practice in dis-
charging certain employees upon the demand of the Carpenters with whom
respondent had a valid union-shop contract which required that all employees
be members of the Carpenters "in good standing " The contract was entered
into on May 27, 1944, and covers all respondent's plants, there being a separate
Carpenters local in each plant. Local Union 2523 of the Carpenters represents
the employees in the Memphis plant which has approximately 600 employees.
The contract is the latest of a succession of contracts, the more recent ones having
covered all respondent's plants and the earlier ones having been for individual
plants A check-off of union dues was first written into the 1944 contract and
became effective on .July 1 of' that year. The expiration date of the contract was
May 31, 1945, but there is a provision for automatic annual renewal in the
absence of notice from either party 30 days prior to the expiration (late of a
desire to amend, change, or terminate it.
With the obtaining of the check-off in the summer of 1944, Local 2523 had
from 100 to 150 members who, although they had made formal application for
membership in the Carpenters, and although they were paying their monthly
dues of $1, had not taken the formiil obligation required of members by the
Carpenters' constitution.' Accordingly, at a meeting on October 23, 1944, prior
to any organizing activity on the part of the Firemen :in(] Oilers, and upon the
insistence of J. C. Barrett, an international representative with supervision over
the local, Local 2523 instituted a campaign to have those applicants for mem-
bership who had not taken their formal obligation, do so, thus fulfilling the
Constitutional requirement for membership in good standing -
'The obligation consists of a iitual of some length paiticipated in by the applicant and
the iiiesident of the local union in which the applicant undertakes to abide by the consti-
tution and bylaws of the Carpenters, to observe local trade union riles, to attempt to pro-
Cure employment tor unemployed members, to demand the union label when purchasing
goods, to employ only union labor when it can be obtained, to submit to the discipline of the
union and its officers, and to retrain from joining any ievolutionaiy organization or any
organization "attempting to disrupt or cause dissension in the Caipenteis " Upon comple-
tion of the obligation the applicant, now a full-fledged member, is tuinished the quarterly
password to union meetings and is pei witted to attend meetings and vote
The application for membership includes a series of questions as to the candidate's
national oingur and citizenship, the number of years lie has worked as a carpenter and in
what community, his domestic status, his health, and his pievious member ship in the
Carpenters Union, if any Aftei the execution of an application for membership, the candi-
date is no mally investigated by an investigating committee of the local union before he is
adnnnistei ed the obligation of membership
76G972-48-vol 75-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Firemen and Oilers first undertook to organize respondent's firemen and
helpers in January 1945, when Lonnie Sisco, a fireman , obtained the member-
ship applications of Henry Wells, Oza Johnson, Willie Stroggins, Roosevelt Lott,
and Charles Odum, the other firemen and helpers in respondent's boiler room.
The Firemen and Oilers filed a petition with the Regional Office of the Board on
January 12, 1945. It was later withdrawn, and the Regional Office advised
iespondent to that effect on February 12. The credible testimony of Charles Kay,
president of Local 2523, is that he had no knowledge of the activities of the
Firemen and Oilers prior to the filing of the petition.
The appearance of the Firemen and Oilers in the boiler room accelerated the
efforts of the Carpenters in obligating those employees, now reduced to about 20
in number, who had not taken their obligation, and a committee was appointed to
interview each of them. Although the boiler room employees must have known
of the campaign to have all employees complete their membership in the Car-
penters, Sisco testified credibly,' and the undersigned finds, that it was not until
after the filing of the petition that he was personally requested to take his obliga-
tion. Thereafter, he was asked by Kay and one or two other stewards or officers
of Local 2523 to do so, and each time he refused. Kay testified credibly that he
personally solicited Stroggins to take his obligation, but was uncertain as to
when lie did so
By April 9, all respondent's employees excepting Sisco, Wells, Johnson, Strog-
gins and one or two other employees in other departments who were not eligible
for membership in the Firemen and Oilers, and as to whom the question of dual
unionism was not pertinent, had taken their obligation On that date, Kay called
at the office of Frank O'Connor, assistant to the president of the respondent and
in charge of labor relations, and informed him that the firemen and helpers were
interested in the Firemen and Oilers union and that they had refused to take their
obligation in the Carpenters Kay stated that unless they did so their discharge
would be requested under the provisions of the Carpenter's contract, and sug-
gested that O'Connor speak to one of the firemen. Accordingly, on the same or the
following day, O'Connor called Sisco to his office and repeated, in substance, Kay's
warning Sisco admitted that the firemen and helpers had joined the Firemen and
Oilers and that they had not taken their obligation in the Carpenters 3 O'Connor
read to Sisco the union-shop provision of the Carpenters' contract, told him that
it was likely that his discharge would be requested by "the Carpenters if he refused
to take his obligation, and suggested that he do so.
On April 10 the Carpenters wrote respondent requesting the discharge of Sisco,
Johnson, Wells, and Stroggins, and, in addition, Booker Thompson, an employee
in the shipping department, because they were in "bad standing" in the Carpenters.
Respondent immediately complied with the request.
On November 12, 1945, Sisco, Wells, and Stroggins took their obligation in the
Carpenters and respondent, upon being so advised, immediately reemployed them.
Roosevelt Lott and Charles Odum were members in good standing in the Car-
penters when they joined the Firemen and Oilers in January. At the same time
2 Srsco was the only one of the discharged employees who was called as a witness.
2It is of some importance that in O 'Connor 's conversation with Kay, the names of
individual firemen and helpers were not mentioned , and that in his talk with Sisco the latter
referred to himself and his fellow employees in the boiler room simply as "we," when
discussing the failure of himself and others to take the obligation . Actually , as is herein-
after related , two of those employees , Lott and Odum , had taken their obligation and
become full -fledged members of the Carpenters , subsequently joining the Firemen and Oilers.
E. L. BRUCE COMPANY 533
Local 2523 demanded the discharge of the other firemen and helpers, it commenced
expulsion proceedings against Lott and Odum They were tried before the local
on April 26 on the charge of "becoming affiliated with [the Firemen] thereby giving
comfort, aid and support to another organization trying to disrupt and cause
dissension." They were found guilty of dual unionism and their discharge was
requested on April 11. It was promptly granted The Carpenters' letter to the
respondent stated merely that Lott and Odum were in "bad standing" in that
organization.
Conclusions
The Board relies on the theory set forth in the Rutland Court case' in which it
was held to be violative of the Act to discharge employees who were seeking to
change their union affiliation and collective-bargaining representative near the
expiration date of a closed-shop contract, the discharge having been demanded by
the union holding the contract and the employer having knowledge that the
reason for the demand was the activity of the employees in seeking to change their
union affiliation. The Board adhered to this theory in the Portland Lumber
Mills' and Cliffs Dow Chemical Co.' cases, but reached a contrary result in the
Diamond T Motor Co.' case, which it distinguished on the ground that the em-
ployer had no knowledge of the reason for the demand for discharge, and in the
Southwestern Portland Cement Co.' case, which it distinguished on the ground
that the employees sought to change the bargaining agent at a time which was
not reasonably close to the expiration date of the contract, with the intention
that the change become effective during the term of the contract.
Under all these cases, involving membership in a union as a condition of em-
ployment, before activity on behalf of a labor organization other than the con-
tracting union is protected, three requisites must be met: (1) the employee must,
under normal circumstances, become a member in good standing of the contract-
ing union; (2) the attempt to change the bargaining representative must be at
an appropriate time; and (3) the intention must be that the change is not to
become effective during the current contract term.
In the instant case, it is admitted that the four employees whose employment
was terminated on April 10, 1945, never took their obligation in the Carpenters
as required by the constitution of that organization in order to become a member
in good standing. The record does not reveal the reasons for their failure to
do so, but whatever they were they antedated, in origin, the advent of the Firemen
and Oilers in the boiler room. It is clear that Sisco, Wells,"Johnson, and Stroggins
only went so far in affiliating themselves with the Carpenters as they were com-
pelled to do by the operation of the check-off. They contributed their dues by
force of circumstance, but studiously withheld their allegiance. Because of
their refusal to take their obligation they were not able to attend meetings,
to vote, to participate in sick benefits, or to enjoy any of the other privileges
accorded members in good standing under the union constitution Inasmuch
as these four employees refused to become members in good standing in the
Carpenters, it is irrelevant to speculate to what extent the Carpenters, in demand-
ing their discharge, were motivated by such refusal, and to what extent they
444 N. L . R.B 587.
164 N. L. R. B. 159.
°64N. L R B 1419
° 64 N. L. R B. 1225.
86.5 N L R B 1.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were motivated by the acitivities of these employees in joining a rival organ-
ization.
Moreover, all six firemen and helpers joined the Firemen and Oilers in the
middle of the contract term, without any indication that any change in bargain-
ing representative, if obtained, was to become effective only after the expiration
of the contract term On the contrary, the long continued refusal of four of these
employees to take their obligation in the Carpenters, and the filing of the Firemen
and Oilers' petition in January, four months before the expiration date of the
Carpenters' contract, strongly indicate, and the undersigned finds, that the
intention was to supplant, forthwith, the Carpenters with the Firemen and
Oilers, as bargaining representative for the firemen and helpers. This being
the case, the instant matter falls within the principle enunciated by the Board
in the Southwestern Portland Cement case.
The cases of Lott and Odum differ from those of the other four firemen and
helpers in that they took their obligation in the Carpenters and became full-
fledged members of that organization. They were expelled for dual unionism.
Their activity in behalf of the Firemen and Oilers, however, was no more pro-
tected than that of their four fellow firemen and helpers. All six employees
joined the Firemen and Oilers 4 months before the expiration of the contract,
and Lott and Odum were associated with the others in attempting to effect an
immediate change in their bargaining representative. Furthermore, in the case
of Lott and Odum, the respondent lacked knowledge of the fact that they had
become full-fledged members of the Carpenters. O'Connor testified credibly
that he presumed that the reason which prompted the demand that these two
employees be discharged was the same which prompted the demand as to the other
four employees, i. e., failure to take their obligation. Under the circumstances,
O'Connor's conclusion was a reasonable, if not an inevitable one. When O'Connor
talked with Kay and Sisco, each spoke of the firemen and helpers as a group
which, acting together, had iefused to take their obligation in the Caipenters,
Sisco, during his conference with O'Connor, referring to himself and his fellow
employees, simply as "we," without distinguishing between the status of Lott and
Odum and their fellow employees. The undersigned concludes that the respondent
discharged Lott and Odum in the belief that they had not become members in
good standing of the Carpenters
It is found that the respondent, by discharging the employees named in the
complaint, did not interfere with, restrain, or coerce its employees in the exercise
of the rights guaranteed in Section 7 of the Act
The complaint alleged that the respondent engaged in acts designed to restrain
employees from membership in the Firemen and Oilers and to maintain member-
ship in the Carpenters in violation of Section 8 (1) of the Act. Other than the
discharges considered above, there was no evidence presented that the respondent
has engaged in such conduct.
The undersigned finds that the respondent did not violate the Act by discharging
the employees named in the complaint because of their non-membership in or
expulsion from • the Carpenters in view of the lawfully agreed requirement of
membership in that organization as a condition of employment, and did not
otherwise interfere with, restrain, or coerce its employees. Accordingly, the
undersigned will recommend that the complaint herein be dismissed.'
9 In making his findings and conclusions the undersigned has not taken into consideration
the fact that both unions here involved are affiliated with the same international
organization.
E. L. BRUCE COMPANY 535
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Inteinational Brotherhood of Firemen and Oilers, Local 954, and Lumber
and Sawmill Branch of the United Brotherhood of Carpenters and Joiners of
America, both affiliated with the American Federation of Labor, are labor organi-
zations within the meaning of Section 2 (5) of the Act.
2. The respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
3. The respondent has not engaged in any unfair labor practices within the
meaning of Section S (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the com-
plaint against the respondent, E. L Bruce Company, Memphis, Tennessee, be
dismissed in its entirety.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203 3S of said Rules and'
Regulations, file with the Board, Rochainbeau Building, Washington 25, D. C., an
original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof ; and any party or
counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65. As further provided in said Section 203 39, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the
order transferring the case to the Board.
HORACE A. RucKEL,
Trial Exanroiner.
Dated October 21, 1946.