New York Shipbuilding Corp.

National Labor Relations Board - Board Decisions

May 19, 1950

89 N.L.R.B. 1446 (N.L.R.B. 1950)

,In the Matter of NEW YORK SHIPBUILDING CORPORATION and WILLIAM
MORGAN JONES
In the Matter Of INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, LOCAL No. 1, C. I. 0., AND INDUSTRIAL UNION
OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 1,
IN AFFILIATION WITH THE INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L.,
LODGE No. 801 and WILLIAM MORGAN JONES
Cases Nos..-CA-14:0 and 4-CB-18.-Decided May P9, 1950
DECISION
AND
ORDER
On March 3, 1950, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
Employer filed exceptions to the Intermediate Report and a support-
ing brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed .2 The Board has considered the Intermediate Report, the
Respondent Employer's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Styles].
2 For the reasons relied upon by the Trial Examiner , and for the further reason that
no charge was filed against Local No. 1, AFL, we shall order that Local No. 1, AFL, be
dismissed as a party respondent herein . Seaniprufe, Incorporated, 82 NLRB 892, 894.
See also The Alexander Milburn Company, 78 NLRB 747.
89 NLRB No. 197.
1446
NEW YORK SHIPBUILDING CORPORATION 1447
We agree with the Trial Examiner that in retroactively applying
the union-security agreement of January 6, 1948, in order to effect
Jones' discharge, upon the Respondent Union's request, the Respond-
ent Employer violated Section 8 (a) (3) and (1) of the amended Act,
and the Respondent Union vi,)lated Section 8 (b) (2) and 8 (b) (1)
(A). In the Colonie Fibre case ,3 the Board held that the proviso to
Section 8 (3) of the original Act did not sanction a contract which
required past membership in the union as a condition of employment.
In that case, as in the instant case, employees were discriminatorily dis-
charged because of their failure to maintain membership in the con-
tracting union during a period between contracts. We believe that
the considerations which led to the decision in the Colonie Fibre case
are equally applicable to the decision in the instant case. Moreover,
unlike the proviso to Section 8 (3) of the original Act, the proviso to
Section 8 (a) (3) of the amended Act specifically defers the lawful
application of a union-security agreement until "on or after the thir-
tieth day following the beginning of such employment or the effective
date of such agreement, whichever is the later." Jones was discharged
because.of his failure to pay dues during a period when, under the
amended Act, he could not lawfully be required to pay such dues as
a condition of continued employment. Accordingly, his discharge
violated the Act.4
The Remedy
The Trial Examiner recommended that the Respondent Employer
offer to Jones immediate reinstatement. As found by the Trial
Examiner, however, Jones would have been laid off because of a
reduction in force on March 11, 1949, and would not have been
reached for recall by October 11, 1949, the date of the hearing. The
record is silent as to whether Jones would have been recalled subse-
quent to that date. In view of the possibility that Jones' name
might not, in the normal course of events have yet been reached for
recall, we shall order the Respondent Employer to offer to Jones im"
mediate reinstatement if, prior to the date of this Order, he would,
absent the discrimination, have been reached for recall. If he would
not have been reached for recall prior to the date of this Order, we
' Colonic Fibre Company, Inc., 69 NLRB 589, 71 NLRB 354, enf. 163 F. 2d 65 (C. A. 2).
As noted by the Court of Appeals . for the Second Circuit, that case was decided by the
Board on the basis of the retroactive union-security contract and hot, as the Respondent
Employer contends , on the basis of dual unionism.
* In view of our decision herein, we find it unnecessary to pass on the Trial Examiner's
alternative basis for finding that the Respondent Union violated Section 8 ( b) (2) and
8 (b) (1) (A) of the amended Act, or on the Trial Examiner ' s various findings with respect
to the alternative theories on which the General Counsel tried this case. We note that,
in any event , no exceptions have been filed to these findings.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall order the Respondent Employer to place Jones' name on its
seniority roster, in such position as it would have occupied, absent
the discrimination, and to offer him reinstatement in accordance there-
with. The back-pay order, as recommended by the Trial Examiner,
will be modified accordingly.5
The Trial Examiner recommended that a broad cease and desist
order be entered against the Respondents herein. This case involves,
however, only a misapprehension on the part of the Respondents as
to the applicability of a valid union-security agreement. The Re-
spondents' conduct in the past does not suggest the danger that other
unfair labor practices will be committed in the future. Therefore, in
accordance with Board practice in cases of this types we shall order
the Respondents to cease and desist from the unfair labor practices
found, and any like or related. conduct.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, New York Shipbuilding Corporation, Camden,
New Jersey, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Industrial Union of Marine and
Shipbuilding Workers of America, Local No. 1, C. I. 0., or in any
other labor organization of its employees, by discriminating in regard
to their hire or tenure of employment or any term or condition of
their employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the amended Act;
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights 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 William Morgan Jones full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, in the manner set forth above in the
section entitled The Remedy.
(b) Post at its plant at Camden, New Jersey, copies of the notice
attached hereto and marked Appendix A.7 Copies of said notice, to
See Underwood Machinery Company, 74 NLRB 641, 649.
See, for example, Western. Can Company, 83 NLRB 4-) ; Inl°rstate Engineering Cor-
poration, 83 NLRB 126; Geraldine Novelty Company, Inc., 74 NLRB 1503.
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order," the words "A Decree of
the United States Court of Appeals Enforcing."
NEW YORK SHIPBUILDING. CORPORATION 1449
be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent Employer's representative,
be posted by it immediately upon receipt thereof and,be maintained
by it for a period of at least sixty (60) consecutive days thereafter in,
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent Employer to insure that such notices are not altered,,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Fourth Region in writ-
ing, within ten (10) days from the date of this0Order, what steps the,
Respondent Employer has taken to comply herewith.
II. The Respondent, Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 1, C. I. 0., its officers, agents, repre-
sentatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause New York Shipbuilding Cor-
poration, Camden, New Jersey, its officers, agents, successors, or as-
signs, to discriminate against its employees in violation of Section 8
(a) (3) of the Act;
. (b) In any like or related manner restraining or coercing employees.
of New York Shipbuilding Corporation, its successors or assigns, in
the exercise of the rights 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) Post at its offices, if any, at Camden, New Jersey, and in other
conspicuous places, including all places where notices to members are
customarily posted, copies of the notice attached hereto and marked
Appendix B.8 Copies of said notice, to be furnished by the Regional
Director for the Fourth Region, shall, after being duly signed by the
Respondent Union's representatives, be posted by it immediately upon
receipt thereof and maintained by it for a period of at least sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material;
(b) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto and marked Appendix B, for
posting, the Respondent Employer willing, at'the offices and place of
business of the Respondent Employer at Camden, New Jersey, in
places where notices to employees are customarily posted. Copies of
said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being signed as provided in paragraph II, sub-
e Ibid.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph 2 (a) of this Order, be forthwith returned to the Regional
Director for such posting;
(c) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
III. The Respondent's, New York Shipbuilding Corporation, Cam-
den, New Jersey, its officers, agents, successors, and assigns, and In-
dustrial Union of Marine and Shipbuilding Workers of America, Local
No. 1, C. I. 0., its officers, agents, representatives, successors, and as-
signs, shall jointly and severally make whole William Morgan Jones
for any loss of pay he may have suffered because of the discrimina-
tion against him, by payment to him of a sum of money equal to the
amount he normally would have earned as wages during the periods
(a) from May 25, 1948, to March 11, 1949, and (b) from the date on.
which he would have been reached for recall, absent the discrimina-
tion, to the date of the Respondent Employer's offer of reinstate-
ment, less his net earnings 9 during the said periods. If the Re-
spondent Employer is not, by the terms of this Order, required to offer
him immediate reinstatement, payment of the sum for the period
specified under (a) shall be made at once, and shall not await the time
when the Respondent Employer shall be required to make such offer.
of reinstatement.
The National Labor Relations Board hereby further orders that
Industrial Union of Marine and Shipbuilding Workers of America,.
Local No. 1, in affiliation with the International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L.,
Lodge No. 801, be dismissed as a party respondent herein.
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, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in INDUSTRIAL UNION OF
MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL NO. 1,
C. I. 0., or in any other labor organization of our employees, by
discriminatorily discharging any of our employees or discrimi-
nating in any other manner in regard to their hire or tenure of
employment or any terms or conditions of employment.
B See Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation V. N. L. R. B.;
311 U. S. 7.
NEW YORK SHIPBUILDING CORPORATION 1451
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William Morgan Jones full reinstatement to
his former or substantially equivalent position, and will make
him whole for any loss of pay suffered as a result of the dis-
crimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
NEW YORK SHIPBUILDING COREORATION,
Em. _p1oyer.
By ---------------------------------
(Representative ) ( Title)
Dated -------------------------
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.
APPENDIX B
NOTICE TO ALL MEMBERS OF INDUSTRIAL UNION? OF MARINE AND SHIP-
BUILDIIiG WORKERS OF AMERICA, LOCAL No. 1, C. I. 0., AND TO ALL
EMPLOYEES OF NEW YORK SHIPBUILDING CORPORATION
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, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause NEW YORK SHIPBUILD-
ING CORPORATION, Camden, New Jersey, to discharge or otherwise
discriminate against employees in regard to their hire or tenure
of employment or any term or condition of employment to encour-
age membership in any labor organization in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of NEW YORK SHIPBUILDING CORPORATION, its SUCCeS-
sors or assigns, in the exercise of the rights guaranteed to them
by Section 7 of the Act.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WE WILL MAKE William Morgan Jones whole for any loss of
pay he may have suffered because of the discrimination against
him.
INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, LOCAL No. 1, C. 1. 0.
By -------------------------------------------
(Representative ) ( Title)
Dated------------------------
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ramey Donovan , for the General Counsel.
Mr. Alvin B. Cormany (Pruitt, Desvernine, and Coursen ), of New York, N. Y.,
for the Respondent Company.
Mr. M. H . Goldstein , of Philadelphia , Pa., for the Respondent , Local No. 1,
C.I.O.
Messrs. F. Morse Archer, Jr., and James G. Aiken ( Boyle, Archer, and Greiner),
of Camden , N. J., for the Respondent, Local No. 1 , A. F. L.
STATEMENT OF THE CASE
Upon charges filed respectively on November 3, 1948, in Case No. 4-CA-140,
and 'on May 25, 1948, in Case No. 4-CB-18, by William Morgan Jones, the General
Counsel of the National Labor Relations Board. by the Regional Director for
the Fourth Region (Philadelphia, Pennsylvania), issued complaints dated April
28, 1949, against the New York Shipbuilding Corporation, herein called theCom=
pany, and against, Industrial Union of Marine and Shipbuilding Workers of
America, Local No. 1, C. I. 0., herein called the Union and Local No. I,.C. I..0.,
alleging respectively that the Company had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 ( a) (1) and
^(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended
(61 Stat. 136), herein called the Act, and that the Union, had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Said
cases were consolidated by order of the Regional Director dated April 28, 1949.
Copies of the respective complaints and charges and of the order of consolidation
and notice of hearing were duly•served on all parties.
With respect to the unfair labor practices the complaints alleged in substance
that on or about May 25, 1948, the Company discharged Jones for nonmembership
in the Union although it had reasonable grounds for believing that membership
was denied or terminated for reasons other than the failure of the employee to
tender the periodic dues and the initiation fees uniformly required as a condition
of retaining membership in the Union (in violation of Section 8 (a) (3) of the
1 The representative of the General Counsel is referred to herein as the General Counsel
and the National Labor Relations Board as the Board.
NEW YORK SHIPBUILDING CORPORATION 1453
Act), and that the Union caused the Company to discharge Jones, whose member-
ship had been denied or terminated on some ground other • than his failure to
tender said dues and initiation fees (in violation of Section 8 (b) (2) and 8 (b)
(1) (A) of the Act).
The Company and the two locals whose names are stated in the caption, there-
after filed separate answers to the complaint denying the commission of the
alleged unfair labor practices.'
Pursuant to notice a hearing was held at Philadelphia, Pennsylvania, on
September 27 and October 11, 1949, before George A. Downing, the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner. All parties were
represented by counsel ; all were afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence relevant to the issues.
'The parties were afforded an opportunity to make oral argument and to file briefs,
proposed findings of fact, and conclusions of law. No oral arguments were made.
The General Counsel, the Company, and Local No. 1, A. F. L., filed briefs, which
have been considered.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The New York Shipbuilding Corporation is a New York corporation with its
office and principal place of business in Camden, New Jersey. The Company is
engaged in the manufacture of ships and naval vessels of various types including
naval vessels for the United States. The approximate annual value of raw
materials used by the Company is in excess of $5,000,000 and more than 50 per-
cent of those raw materials come from outside the State of New Jersey. The
approximate annual value of the ships produced by the Company is $16,278,000,
.of which approximately 50 percent go outside the State of New Jersey.
The Company admits, and it is hereby found, that it is engaged in commerce
-within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Industrial Union of Marine and Shipbuilding Workers of America, Local No.
1, C. I. O. is.a labor organization admitting to membership employees of the
Company.
Industrial Union of Marine and Shipbuilding Workers of America, Local No.
1, in affiliation with the International Brotherhood of Boilermakers, Iron Ship-
builders and Helpers of America, A. F. L., Lodge No. 801, is a labor organization
admitting to, membership employees of the Company.
At the time of Jones' discharge on May 25, 1948, Local No. 1, C. I. 0., was
the only labor organization representing or claiming to represent the Company's
-employees. Subsequently a split or schism occurred within that Union, as a
result of which a large proportion of its membership and all of its officers dis-
:affiliated with the C. I. O. on September 28, 1948. The disaffiliated group con-
' The answer of the C. I. O. Local was stated orally on the record at the hearing.
The A. F. L. Local was added as a party respondent at the hearing , on motion of the
,General Counsel , for reasons stated under Division II, infra.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinned as an independent union, without affiliation, until July 1949, when it
affiliated with the International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, A. F. L.
Another group within Local No. 1, C. I. 0., dissented from and objected to the
disaffiliation.
Both groups thenceforth claimed to constitute Local No. 1, and their respective
claims are presently the subject of litigation in the State Courts of New Jersey s
No evidence was offered in the present proceedings in support of the claims of
either group, and there is consequently no basis in the record for a determination
of the question as to which group presently constitutes Local No. 1.
Under these circumstances, since Local No. 1, C. I. 0., was the only labor
organization in existence at the time of the commission.of the acts complained of
and since it admittedly committed those acts,' it is the only necessary union
party respondent. It will, therefore, be recommended herein that the complaint
be dismissed as to Local No. 1, A. F. L. Since the recommended order will run
against Local No. 1, C. I. 0., and its successors and assigns, the question of the
ultimate responsibility for compliance with the remedial order is one which will
turn upon the final determination of the pending litigation.
III. THE UNFAIR LABOR PRACTICES
0
A. Summary of events
a
William Morgan Jones, the charging party, was an employee of the Company
from 1931 until his discharge on May 25, 1948. However, a strike occurred on
July 1, 1947, and continued to September 22, 1947, and during that period Jones
did not work for the Company nor for anyone else.
The Cpin any's operations were suspended during the strike with the exception
of plant protection and maintenance.
contract was in existence with Local No. 1,Prior to the strike a union-shop
C. I. 0., but that contract ultimately expired on June 30, 1947, and there was no
contract in effect during the strike. The earlier contract contained provisions for
a check-off of union dues, and under that arrangement Jones' dues had been fully
paid prior to the strike. Jones did not pay dues during the strike period when
no contract was in effect.
A new contract was entered into effective with the termination of the strike on
September 22, 1947. That contract continued the provisions for the check-off
arrangement, and Jones' dues for the p eripd subsequent to the strike were
checked off by the Company.
In December 1947, a union-shop election was held under Section 9 (e) of the
Act, as a result of which the Board certified that a majority of the employees
eligible to vote had voted to authorize the Union to make a union-shop agreement
in conformity with the provisions of Section 8 (a) (3) of the Act. By supple-
mCntal agreement dated January 6, 1948, there was added to the contract the
3 It is represented in the brief of Local No. 1, A. F. L., that the trial court held in its
decision dated December 12, 1949, that the disaffiliation was of no legal consequence and
that the Union remained an affiliate of C. I. 0. There was no suggestion, however, that
the trial court's judgment would Pe accepted as a final adjudication of the issues ; indeed,
counsel for Local No. 1, A. F. L., had conceded at the hearing the probability of an appeal.
Such admissipn was made by counsel fqr Local No. 1, C. I. 0., at the hearing.
NEW YORK SHIPBUILDING CORPORATION 1455
union-security clause set out in the margin.` The General Counsel conceded at
the hearing that the clause was duly authorized and that it was a valid union-
shop clause.
Jones had been tried by the Union in October 1947 on charges of "conduct
detrimental to the best interest of [the] Union and its members during the recent
strike," specifically, for failure to perform his strike duties. On November 18,
he was notified that he had been found guilty and had been fined $100. He was
given until February 20, 1948, to pay his fine and was informed that in the event
he did not pay the fine on or before that date his membership would be suspended
and that he would thereafter be denied his rights to attend meetings, to vote as
a member of the Union, and to receive a transfer or withdrawal card.
Jones testified that for the purpose of voting in the Union election he endeavored
to procure his union card from the Union some weeks prior to his discharge but
that he was informed by some union officer, who he finally identified as Henry J.
Andreas, assistant executive secretary, that he was not in good standing, and that
Andreas suggested to him that he pay his $100 fine. Andreas specifically denied
the incident.'
Unrebutted evidence offered by the Union establishes that around May 12
or 13, 1948, the Union sent to 14 employees, including Jones, messages or notices
to appear at the union office in regard to their "obligations." All of those mem-
bers had, like Jones, failed to pay dues during the strike period and had also,
like Jones, been fined varying amounts from $25 to $125 for failure to perform
their strike duties. The notice to Jones was read to him by Earl Huebler, shop
steward in Jones' department. Jones, who apparently assumed that the "obliga-
tion" referred to was the fine, gave Huebler an obscene message to the Union
and indicated he would ignore the summons.
Nine of the fourteen members responded to the notices. When they appeared
at the union office each of them was told that he was delinquent in his dues in
to total sum of $3.75 for the months of July, August, and September 1947.' All
of them paid or made arrangements to pay those dues. It is also clear that they
were requested to pay or to make arrangements to pay their respective fines.
Four of them made such.an arrangement, but five did not. The chart set forth
5 ThC Company, within the limitations imposed by the Labor Management Relations Act,
1947, agrees that it will not retain as an employee any person [ with exceptions not here
material ], unless he be and remain a member of the Union in good standing insofar as the
payment of dues and initiation fees are concerned , or unless , within 30 days after the date
of the execution of this supplemental agreement or after his hiring, whichever is later, he
become and thereafter remains a member of the Union in good standing , insofar as the
payment of dues and initiation fees are concerned, and any employee who fails to join the
Union or maintain himself in good standing according to the constitution and bylaws of
the Union insofar a s the payment of dues and initiation fees are concerned , will be
terminated by the Company when such failure is certified to the Company by the proper
officials of the Union.
I Jones ' attempted identification of the union officer with whom he had the conversation
was uncertain and indefinite. Howetei, his testimony that the incident occurred is
credited.
The General Counsel contended that the imposition (or the failure to waive the pay-
ment ) of such dues was in substance and nature a fine , a discharge for which was illegal.
The pertineit lirovisions of the union constitution and bylaws and other pertinent evidence
is summarized under the discussion of this question , infra, pp. 1462-1463.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
below summarizes in more detail the evidence as to the results of the interviews
and the extent of the payment of fines :
Member's name
Reichle________________
Date
dues
Paid
Amount
of fine
Payments
on fine Date
May 24
Joslin------- __________ May 26
McDowell---::---___ May 26
LaPella________________ May 26
Patterson______________ May 26
Egbert________________ May 24
(Balance paid in full by installment
Reitz__________________ May 24
(This member still em-
ployed by the Com-
pany.)
Cerak_________________ May 26
(This member worked
steadily until May 13,
1949.)
Lore__________________ May 26
$100
$100
$125
$50
$60
$52
)ayments
$50
$25
$100
$2
$25
Balance
None
$5
None
$10
June 4.
Jan. 14, 1949.
Aug. 10, 1949.
July 7, 1948.
Feb. 2, 1948,
$5 1 May 27.
down to Apr. 8, 1949.)
None I
None
None
Although five of the members who appeared made no arrangements to pay their
fines, the Union did not request the termination of the nine. It did request the
termination of the five who had not appeared on the ground that each had failed
to maintain his membership in good standing insofar as the payment of dues was
concerned s and they, except Jones, were discharged by the Company on May 28.
In Jones' case, the Union's letter, dated May 24, 1948, reads as follows :
This will certify that William M. Jones, Badge #47072, has refused to
comply with the terms of Article 2 of the current Agreement between the
New York Shipbuilding Corporation and the I. U.'M. S. W. A. Local #1, by
failing to maintain his membership in good standing insofar as the payment
of dues is concerned.
Under the terms of the aforesaid Agreement we formally request that the
above member be terminated as an employee of the New York Shipbuilding
Corporation , effective immediately.
Pursuant to that request the Company discharged Jones on May 25, the ter-
mination slip reading, "Terminated for non-payment of dues as certified by the
Union."
As in the other cases, the Union claimed Jones to have been delinquent for
dues during the strike months. The Company's industrial relations manager.
Edward Sharp, admitted knowing that Jones' dues had been checked off by the
Company both before and after the strike. He disclaimed actual knowledge of
the period of Jones' delinquency but testified that he "would assume" and that
fi As to Jones and the other four employees whose discharges were sought , the Union had
invoked a suspension of membership by dening them the privileges of membership as set
forth in the bylaws. However , the Union did not actually terminate their membership,
but carried them as members in a suspended status,
NEW YORK SHIPBUILDING CORPORATION 1457
he in fact did assume that the delinquency could only have been for the months
of the strike.
Jones admitted that when he inquired of Sharp the reason for his discharge,
Sharp informed him it was for the nonpayment of dues. Jones also testified
that he called Sharp's attention to the checkoff system and that Sharp informed
him the delinquency which the Union claimed was for the strike period. That
testimony is credited. Jones raised no further question either with the Company
or, the Union but went immediately to the Regional Office of the' Board and
filed a charge a
The Union's bylaws contained the following provisions in Article III, which
are pertinent here :
Sec. 3. Members in Good Standing: A member in good standing shall be
one who is not (3) months in arrears in the payment of any amount of his
dues nor delinquent in the payment of fines or assessments, or who has not
been suspended or expelled after trial by the Executive Board. Every
member in good standing shall be admitted to all membership meetings of
this Local and of his department organization, and shall have a voice and
vote on all questions brought up at any of these meetings.
Sec. 5. Suspended Members: A member becomes automatically suspended
when he is three (3) months in arrears in payment of any amount of his
dues, or is delinquent in payment of his assessments or fines. Such member
shall be notified of his suspension by the Executive Secretary. A suspended
member shall not be admitted to any meeting, nor shall be be entitled to
have any action taken on his behalf by the Executive Secretary or shop
steward. His suspension shall be lifted when he has paid such dues, assess-
ments, or fines as to bring him tinder the definition of a member in good
standing.
Sec. 10. Monthly Dues : Each working member shall pay the sum of One
Dollar and Twenty-five cents ($1.25) as dues for each month. . . . Any
member who works less than forty (40) hours in any calendar month shall
be considered unemployed, and shall pay only Twenty Cents (20¢) as dues
for that month... .
B. The issues ; the applicable statutory provisions
The issues which are raised by the record and which are discussed in the briefs
may be stated as follows :
1. Whether the suspension or the loss of membership in good standing because
of Jones' failure to tender periodic dues was tantamount to a denial or termina-
tion of membership and a legal justification for his discharge.
9 The General Counsel also offered the testimony of Edward Herman as to the circum-
stances of his own discharge for the purpose of "showing knowledge on the part of the
Company of what was going on and something in the nature of a course of conduct on the
part of the Union." Although Herman testified that he had informed Plant Superintend-
ent Brown that it was his failure to pay a fine that was the basis of the Union's request
for his discharge , his testimony was contradicted on crucial points by Thomas W. Saul,
executive secretary , and Henry J. Andreas , assistant executive secretary of the Union, and
'was not corroborated. It is otherwise wholly inadequate to establish a "course of con.
duct" on the part of the Union, and is, completely overborne by the evidence summarized
above as to the Union 's handling of the 14 cases of delinquencies.
Although Herman ' s testimony is found to be of slight probative value , it is permitted to
'remain in the record- in the face of motions to strike made by the Respondents.*
1458 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
2. Whether Jones' discharge was because of a suspension or loss of membership
in good standing which had been grounded on his failure to pay the fine of $100
imposed by the Union rather than on his nonpayment of dues.
3. Whether the imposition or the failure to waive the payment of Jones' dues
during the strike period was a fine or penalty imposed solely because of Jones'
failure to perform his strike duties, and whether his discharge because of a
suspension of membership grounded on nonpayment of such dues was illegal.
4. Whether the union-shop clause was applied retroactively in causing and
effecting Jones' discharge, and whether his discharge, if so effected, was illegal.
There can be no question that Jones' discharge was discriminatory within the
meaning of Section 8 (a) (3), since the obvious intent and effect thereof was to
encourage membership in the Union.. The provisos to that section, however,
lay down the conditions under which an employer may justify such discrimina-
tion; and Section 8 (b) (2) (relating to corresponding unfair labor practices by
unions) contain provisions which dovetail therewith. The questions arising
under the above-stated issues are whether certain aspects of the specified con-
ditions for justifying discrimination, otherwise proscribed, have been met.
Since the discussion of these questions requires close and frequent attention to
the applicable statutory provisions, there is now set forth for convenient reference
the full text of Sections 8 (a) (3) and 8 (b) (2), on the interpretation of which
those issues mainly depend.
Section 8 (a) (3). It shall be an unfair labor practice for an employer
by discrimination in regard to hire or tenure of employment or any term
or condition of employment to. encourage or discourage membership in any
labor organization : Provided, That nothing in this Act, or in any other
statute of the United States, shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or assisted
by any action defined lit section 8 (a) of this Act as an unfair labor practice)
to require as a condition of employment membership therein on or after the
thirtieth day following the beginning of such employment or the effective
date of such agreement; whichever is the later, (i) if such labor organization
is the representative of the employees as provided in section 9 (a), in the
appropriate collective-bargaining unit covered by such agreement when made;
and (ii) if; following tiie most recent election held as provided in section
9 (e) the Board shall have certified that at least a majority of the employees
eligible to vote in such elections hake voted to authorize such labor organiza-
tion to make such an agreement : Provided further, That no employer shall
justify any discrimination against an employee for nonmembership ih a
labor organization (A) if he had reasonable grouiids for believing that such
membership was hot avaiiable to the employee on the same terms and
conditions generally applicable to. other members, or (B) if he has reasonable
grounds for believing that membership was denied or terminated for reasons
other than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining
membership.
Section 8 (b) (2).. It shall be an unfair labor practice for a labor organi-
zation or its agents to cause Or attempt to cause an employer to discriminate
against an employee iii violation of subsection ( a) (3) or to discriminate
against an employee with respect to whom membership in such orgaiization
has been denied or terminated on some ground other than his failure to
NEW YORK SHIPBUILDING CORPORATION 1459
tender the periodic clues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
C. The issues resolved
1. Whether the suspension or the loss of membership in good
standing because of Jones' failure to tender periodic dues was
tantamount to a denial or termination of membership and a legal
justification of his discharge.
Under the first proviso to Section 8 (a) (3),10 on conditions specified (and
here met), employer and union are permitted to contract to require as a condition
of employment membership in the union. A further proviso forbids discrimina-
tion in such cases by an employer against an employee for nonmembership in
the union unless it has reasonable grounds for believing that membership was
denied or terminated for reasons other than the nonpayment of periodic dues.
The General Counsel argues that because Jones' membership had only been sus-
pended and not denied or terminated and because the Union admitted that Jones
was at the time of his discharge carried as a member, though in a suspended
status (i. e., because not "in good standing"), the terms of the proviso were-hot
met and the discriminatory discharge could not, therefore, be justified.
Most of the force of the General Counsel's argument on this question was dis-
sipated by his concession at the hearing that the union-shop clause was on its
face a valid one. For, on its face, that clause required the Company to discharge
any employee upon certification by the Union that he had failed to maintain
his membership "in good standing according to the constitution and bylaws of
the Union insofar as the payment of clues and initiation fees are concerned."
The bylaws, thus incorporated by reference into the contract, provided that loss
of good standing and suspension of membership resulted from arrearages of
3 months in the payment of dues.
Under the contract, therefore, a discharge could clearly be required and made
on the ground that the employee had not maintained his, membership in good
standing or that his membership had been suspended for nonpayment of clues.
The concession that the clause urns a valid union-shop clause under the statute
would seem to preclude the further argument that a discharge made pursuant to
these clear requirements of the contract would constitute a .violation of the
statute.
It is unnecessary, however, for the resolution of the issue to turn alone on
that consideration.
Union-shop and union-security clauses quite similar or closely analogous to
the instant one were frequently encountered under Section 8 (3) of the original
Act, and their compliance with the proviso of that section n was uniformly as-
sumed. But that proviso was identical in wording to the present proviso to
the amended section in the respect now relevant, i. e., both permitted the making
10 The full text of the section is set forth in Section B, supra. Henceforth , references
will be made only to such portions of the section as are applicable to the particular point
under consideration.
11 "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 condition of employment
,membership therein , if such labor organization is the representative of the employees as
provided in Section 9 (a) in the appropriate collective bargaining unit covered by such
agreement when made."
889227-51-vol . 89--93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an agreement between an employer and union to require as a condition of
employment membership in the union.
As stated, the validity of union-shop and union-security clauses was uniformly
assumed under the original proviso, and this regardless of whether they read
in terms of "members of.good standing" and "suspension" of membership, or in
terms of "expelling" members and of the denial and termination of membership.
In fact, the distinction now urged was wholly, or almost wholly, ignored.
Illustrative of the clauses whose validity was assumed was the standard war
Labor Board maintenance of membership clause (so characterized in Aluminum
Company of America v. N. L. R. B., 159 Fed. 2d 523, 526 (C. A. 7) ordering enforce-
ment of 68 NLRB 750). That clause required that members and employees who
became members should "as a condition of employment remain members of the
union in good standing during the life of the agreement." (Emphasis supplied.)
More recently such a clause was before the Board in Combustion Engineering Co.,
Inc., 86 NLRB 1264, decided under the amended Act and again its validity was
assumed insofar as the present point is concerned.
An interesting variation was presented to the Board in the case of Public
Service Corporation of New Jersey, 77 NLRB 153, in.which the Trial Examiner
found the present distinction to be crucial to the determination of that case
(ibid., 187). The clause there provided that:
Employees, being members of the Association, and therefore, parties to
this agreement, shall during the period of this agreement remain members
of the Association, if in the employ of the company. (Emphasis supplied.)
The Board summarized the Trial Examiner's finding as follows :
The Trial Examiner concluded that the collective bargaining contract
between the Respondent and the Amalgamated did not.require the termina-
tion of Sconfienza's employment because Sconfienza had not been expelled
from membership in the Amalgamated but had only been suspended from
membership in good standing.
The Board found it unnecessary to pass upon the point; but assuming that the
contract required the termination of an employee whose membership had been
suspended, it held that the Rutland Court doctrine (Rutland Court Owners, Inc.,
44 NLRB 587; 46 NLRB 1040) was dispositive of the case. The Board also
"assumed that the contract is the type of agreement which falls within the
ambit of the proviso of Section 8 (3)."
The Colgate Palmolive Peet case, 338 U. S. 355, recently decided by the Supreme
Court (December 5, 1949) affords the best illustration of disregard for the
present distinction. There, as here, the contract had provided for membership
in the union "in good standing." In that case, some 37 employees altogether
were suspended by the union on account of rival union activities and were dis-
charged by the company on demand.of the union on the ground that they were
no longer "members in good standing." Subsequent to the discharges a number
of them were actually expelled from the union after trial.
Neither the Board (70 NLRB 1202), the Court of Appeals (171 F. 2d 956),
nor the Supreme Court considered it of significance that membership had only
been suspended and that the members were simply no longer "in good standing." '2
"Indeed , the Supreme Court's opinion states that some of the group had been suspended
and some expelled by the Union prior to the discharges , but it drew no distinction between
them ' in reference to the question whether membership had continued or not continued in
the Union.
NEW YORK SHIPBUILDING CORPORATION 1461
wince the language of the amended Act tracks that of the original proviso on
the crucial words "to require as a condition of employment membership" in the
union, no reason appears why the earlier Board and Court decisions should not
be considered decisive of the issue. It is therefore concluded that under the terms
of the concededly valid union-shop clause employer and union could legally effect
the discharge of an employee who had failed to maintain his membership "in
• good standing" through a nonpayment of dues.
2. Whether Jones' discharge was because of a suspension or loss of
membership in good standing which had been grounded on his
failure to pay the fine of $100 imposed by the Union rather than
on his nonpayment of dues
A preponderance of the evidence fails to sustain the General Counsel's position
that the Union caused and the Company effected Jones' discharge because of his
failure to pay the fine of $100 rather than because of his nonpayment of dues.
It is true that Jones assumed that his discharge was being effected because of
nonpayment of the fine, but that assumption was the result of his own failure to
respond to the Union's summons or otherwise to inquire as to the nature of the
"obligation" to which his attention was being directed.
Furthermore, Jones at no time informed the Company of his view or claim
that the Union had suspended his membership and was requesting his discharge
on account: of the nonpayment of the fine. This omission seems inexplicable in
view of his testimony of his conversation with Sharp in which Sharp informed
him of the basis of the Union's request and of the exact period for which the
Union was claiming a delinquency in dues. Jones should certainly then have
realized his earlier misapprehension ; or if his previous doubts had continued,
he should certainly have imparted to the Company the full facts on which he
based a contrary belief or suspicion.
Even at that 11th hour it does not appear that it would have been too late
for Jones to have paid or made arrangements to pay the delinquent dues and
have been reinstated. Certainly that was the result in the case of the nine
employees who responded to the Union's summons. Andreas testified for the
Union that the single requirement made in their case was that they pay their
delinquent dues, and that he had no alternative but to accept the payment of
dues even if the obligation to pay the fine was not acknowledged. The evidence
previously summarized as to the results of the interviews supports Andreas'
testimony. Thus, though six of the nine paid their delinquent dues as late as
May 26, and though five of them made no payment or arrangement for payment
of their fines, the Union forthwith withdrew its request for their discharge.
Herman's testimony (see footnote 9) as to his own experience requires no
different conclusion. His own case differs widely from Jones' because of his
claim that he actually informed the Company that the Union was demanding
his discharge on account of his nonpayment of the fine. Furthermore, so far as
establishing a "course of conduct" by the Union, as contended by the General
Counsel, it is completely overborne by the evidence of the Union's handling of
the 13 other cases.
It is therefore found that the General Counsel has failed to sustain his con-
tention that Jones' membership was suspended because of his failure to pay
.the fine and that his discharge was effected on account thereof rather than on
his failure to pay periodic dues.
1462 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
3. Whether the imposition or the failure to waive the payment of
Jones' dues during the strike period was a fine or penalty imposed
solely because of Jones' failure to perform his strike duties, and
whether his discharge because of a suspension of membership
grounded on nonpayment of such dues was illegal
The International's constitution 13 and the Union's bylaws clearly cover the
matter of dues. For working members, dues are fixed at $1.25 a month,14 and
for unemployed members, at 20 cents a month. A member working less than
40 hours in any one calendar month is considered to be unemployed for that
month. Though no reference is made to, and no separate provision is made
for, dues during strike periods, the foregoing provisions are clearly broad enough
to cover, and were presumably intended to cover, such dues.
There is no provision either in the constitution or bylaws which gives to any
officer or committee authority to fix or vary dues during strike periods. The
bylaws do provide that "during a strike the Negotiating Committee shall be in
charge of all official business of the local," but this obviously authorizes the
committee to transact only such business as the local may legally and properly
transact under the constitution and its own bylaws. There is no suggestion
that its powers were to extend to effecting amendments to or alterations of
the local's bylaws, since such action could only be accomplished through a
formalized procedure prescribed therein.15 Certainly the committee was without
power to effect any amendment as to dues, since on that matter the limits of
the local's own authority were narrowly circumscribed by the International's
constitution.
The evidence establishes, however, that during the strike period the local
received from the International a directive under which locals were permitted
to waive monthly dues during a strike period. Since the written directive is
not in evidence and since the testimony regarding its contents is inexact, it is
difficult to determine the extent of the local's authority or discretion there-
under. It seems clear however that even if it were assumed arguendo that the
local were free to apply the waiver to individual employees on an ad /too basis,
waiving in some cases and not waiving in others, such was the extent of its
authority.
Nevertheless, the negotiating committee undertook not only to interpret and
apply the International's directive so as to authorize a waiver of dues only as
to members who had performed their strike duties, but it also engrafted a
further interpretation, directly in conflict with the constitution and bylaws,
13 The Trial Examiner sustained objections to the introduction of the constitution,
which was placed in the record as an rejected exhibit. Now, convinced that the exhibit is
relevant on the question of the local's authority to fix, vary, or waive dues during a strike
period , the Trial Examiner rescinds his former ruling and hereby receives the exhibit in
evidence.
14 In the case-of working members the constitution authorizes locals to impose monthly
dues in excess of $1.25 but not more than $2.
1s Art. VI, Section 1 provides :
Proposed amendments to these By-Laws must be presented in writing to the Gen-
eral Membership meeting. The President shall immediately appoint a committee of
five (5 ) members to study the amendment . This committee 's recommendation to the
Executive Board shall be made as soon as possible and shall be placed before the
next meeting of the Local for approval or disapproval. A two-thirds (2/3) vote of
the members present shall be required before passage.
Furthermore , the International's constitution provided for the submission of a local's
bylaws to the International ' s general executive board for approval before adoption "to
insure that they shall not conflict with this Constitution or the policies of the Union."
NEW YORK SHIPBUILDING CORPORATION 1463
the members who responded to its summons the full sum of $1.25 a month for
employed member, with duties of $1.25 a month.
Applying this interpretation, the Union demanded and received of each of
the members who responded to its summons the full sum of $1.25 a month for
the strike period, a total of $3.75, although as unemployed members their dues
were fixed by the constitution and bylaws at 20 cents a month. Such exactions
were made solely because of failure to perform strike duties, and this in spite
of the fact that substantial fines had already been levied, after trial, for the same
dereliction.
In Jones' case the Union admitted similarly imposing and claiming the full
dues of $1.25 a month and for the same reason as in the other cases. It also
admitted suspending his membership for his failure to pay said sums and
causing his discharge therefor.
A union is, under the Act, wholly free to regulate its own internal affairs and
to lay down any conditions and rules respecting membership that it desires
(cf. Section 8 (b) (1) (A)) ; but it may not use those rules under a union-shop
agreement to limit an employee's right to secure and retain employment, except
for specified reasons. This is in clear accord with the legislative history of the
amendments. See, for example, the following statement at p. 21, of Senate
Report No. 105, 80th Cong., 1st Sess :
.
The labor organization may not persuade or attempt to persuade 18 the
employer to discriminate against any employee except for two reasons :
First, that the employee has lost his union membership by failing to tender
the dues or initiation fees uniformly required as a condition of member-
ship ; [the second reason, dual union activity, was deleted in confer-
ence] . . . It is to be observed that the unions are free to adopt whatever
membership requirements they desire but they may not rely upon action
taken pursuant to those provisions in effecting the discharge of, or other
job discrimination against, an employee except in the two situations
described.
Therefore, although the Union was at liberty to impose such sanctions as it
desired against Jones as its member, it could not legally cause the Company
to discriminate against him as an employee except for a denial or termination
of membership grounded on his failure to tender periodic dues.,
Under the facts herein found, it is concluded that the imposition of dues of
$1.25 a pionth during the strike period was in fact a fine or penalty imposed
solely because of Jones' failure to perform his strike duties ; that his loss of
good standing and suspension of membership for which his discharge was in-
voked was ground on his failure to pay said fine; and that by causing the Com-
pany to discriminate against Jones by discharging him for said reason, the
Union committed an unfair labor practice within the meaning of Section 8
(b) (2) of the Act.
It is further concluded and found that the same result would follow even if
the imposition of dues did not, under the circumstances, rise to the level of a
fine or penalty. Thus, to qualify under the statute, the loss. or suspension of
membership which will justify a discriminatory discharge must be grounded on a
failure to pay such periodic dues as are uniformly required as a condition of
acquiring or retaining membership. Under the facts herein found, though the
sums demanded be regarded strictly as dues, there was obviously no uniformity
"Amended in conference to the present language of the Act, i. e., "cause or attempt to
cause."
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the requirement of payment during the strike period. The constitution and
bylaws fixed the dues of nonworking members uniformly at 20 cents a month;
but the local, arbitrarily discriminating between members who had performed
strike duties and those who had not, abrogated the rule of uniformity and
demanded dues of $1.25 a month of the latter.
Regardless, therefore, of whether the claimed sum of $3.75 be considered as
dues or as a fine or penalty, the Union was guilty of the commission of the same
unfair labor practice under Section 8 (b) (2).
It is further found that by causing the Company discriminatorily to discharge
Jones under the foregoing circumstances, the Union restrained and coerced Jones
in the exercise of the rights guaranteed by Section 7, and thereby violated Section
8 (b) (1) (A) of the Act. Clara Val Packing Co., 87 NLRB 703; Union Starch
i Refining Co., 87 NLRB 779.
There is no evidence, however, that the Company had any knowledge of the
basis on which the Union was asserting its claims as to the delinquency of its
members other than that the delinquency was claimed for the strike months when
no check-off was in effect. Nor did the Company have any reasonable grounds for
believing otherwise. Indeed, when according to Jones' testimony, Sharp informed
him that such was the period of delinquency claimed by the Union, Jones did
not contend otherwise nor did he assert that the Union's request for his discharge
on that basis was for any reason illegal or improper.
The aspect of the case now under consideration does not, therefore, establish
the commission by the Company of unfair labor practices under Section 8 (a) (3)
of the Act. Whether it was otherwise guilty of a violation of that section will turn
on a resolution of the final issue 17 to which attention is now turned.
4. Whether the union-shop clause was applied retroactively in
causing and effecting Jones' discharge, and whether his discharge,
if so effected, was illegal
It has been found that the period of Jones' delinquency was for the months of
July, August, and September 1947; that because of such delinquency his mem-
bership was suspended ; and tliat because of such suspension Jones was dis-
charged. As the union-shop agreement was not entered into until January 6,
1948, it is clear that the union-shop clause was applied retroactively to effect
Jones' discharge. The issue remains whether such retroactive application of a
union-shop clause comports with Section 8 (b) (2) and with the provisos of
Section 8 (a) (3).
The General Counsel relies on three cases (Colonic Fibre Company, Inc., 69
NLRB 589; Supplemental Decision, 71 NLRB 354; Hamilton-Scheu and Walsh
Shoe Company, 80 NLRB 1496; Selig Manufacturing Company, 79 NLRB 1144)
decided under Section 8 (3) of the original Act to support his position that in
applying the union-shop provisions retroactively the Company and the Union
committed unfair labor practices.
The briefs filed by the Company and by Local No. 1, A. F. L., urge that those
cases are distinguishable because all of them involved dual unionism and because
none is involved here. It is true that such a distinction exists, but an analysis
of the cases does not disclose that such fact accounted for the conclusion reached
by the Board or that, absent evidence of dual unionism, the Board would not
have rested its decisions solely on the 'retroactive enforcement of the union-
security clause.
17 The resolution of that issue also involves a consideration of additional bases for a
finding of unfair labor practices by the Union under Section 8 (b) (2).
NEW YORK SHIPBUILDING CORPORATION 1465
In the Selig case, although the Board rested its decision on both grounds, it
is clear that it did so on each ground independently and not because of their
cumulative support of its conclusion that the discharge was discriminatory.
The Board's language reveals this plainly :
We.rely on two facts: (a) The proviso to Section 8 (3) did not and does
not authorize the Respondent to make an agreement requiring past member-
ship in a labor organization as a condition of present employment, or to
discharge employees expelled for dues arrears which accrued during such
periods; (b) in any event the Respondent knew that the contracting union
had deprived the complainants of membership because of their timely
activity on behalf of a rival union.
In the Hamilton-Scheu case, the Board rested its conclusions jointly on its
findings of dual unionism and on the retroactive application of a union-shop
agreement, saying :
. . . We find on the entire record that the A. F. L. requested Wright's dis-
charge because of his C. I. 0. activities preceding the execution by the
Respondent on July 10, 1946, of a union-shop agreement with the A. F. L.
[Emphasis supplied.]
The decision contains explicit recognition, however, that standing alone and
independent of evidence of dual unionism, the retroactive application of the
union-shop agreement to effect the discharge would have violated the Act. The
following language in•footnote 8 makes this wholly clear:
Indeed, the Respondent, in its brief to the Board, admits that it knew
that the A. F. L. suspended Wright from membership and later requested
his discharge because he had not paid A. F. L. dues during a period before
the execution of the union-shop contract by the Respondent and the A. F. L.
Such retroactive application of a union-shop requirement constitutes dis-
crimination, within the meaning of the Act 18 [Emphasis supplied.]
This doctrine had originated in the Colonie Fibre case, which remains the
leading case on the subject. In that case the Trial Examiner had based his
finding of discrimination on the Rutland Court doctrine, i. e., union activity on
behalf of a rival union during a protected period, and had found it unnecessary
to pass on the asserted invalidity of a retroactive maintenance of membership
clause.
The Board, while agreeing that the discharges were discriminatory, expressly
based its finding "on our conclusion that the maintenance-of-membership clause
is invalid because of its retroactive feature."79
'The Court of Appeals in ordering enforcement (Colonie Fibre Company v.
N. L. R. B., 163 F. 2d 65 (C. A. 2)) also found it unnecessary to consider the
"dual unionship" ground, observing :
The legal effect of the fact that the discharges were perhaps made in
part because of "dual unionship" we need not consider, since the Board did
not rest its decision on that ground, but on the sole ground that the dis-
charges were based on the maintenance of membership provision of the agree-
ment of May 23, 1945. (Italics supplied.)
18 Citing among other cases Colonie Fibre Company and Selig Manufacturing Company,
oupra.
11 The fact that the clause itself was held invalid, while here the clause is concededly a
valid one, is without significance. As the Board recently observed, "We see no significant
distinction between the enforcement of an illegal contract . and the illegal application
of a valid contract." Union Starch and Refining Company, 87 NLRB 779, citing, by way
of comparison, Clara Val Packing Company, 87 NLRB 703.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The court found that the evidence sufficiently supported the Board's conclusion
that the discharges "were knowingly made by the company on the basis of the
retroactive features of the maintenance-of-membership provision," and agreed
with the Board that such a provision was not within Section 8 (3) of the
original Act.
Though the foregoing cases were decided under the original Act no reason
appears why they should be regarded as inapposite under the amendments, as
urged by the Company. Indeed, the legislative history of the amendments con-
tains implicit recognition and approval of their doctrine.
Congress was, of course, fully aware of the restrictive interpretation which
the Board had placed on the proviso to Section 8 (3) and on closed-shop contracts
relied on thereunder, including the Rutland Court doctrine and the Colonic Fibre
doctrine.20 The committee reports and the debates show concern with many
features of the original Act and with some of the Board's interpretations thereof,
including the Rutland Court doctrine. Under the Senate Bill the latter doctrine
would have been enacted into law (Senate Report No. 105, 80th Cong., page 22),
but as finally enacted Sections 8 (a) (3) and 8 (b) (2) implicitly prohibited
discharges resulting from expulsions from membership for "dual unionism." To
the contrary, there is no indication that Congress desired or intended to make
any change in the Colonic .Fibre doctrine. This is persuasive of legislative recog-
nition that the Board's construction (later affirmed by the Court of Appeals) was
the correct one. Cf. Apex Hosiery Company v. Leader, 310 U. S. 469.
Indeed, the very language of the amendment affirmatively supports the view
that Congress intended the union-shop provisions to operate only prospectively.
Thus, it permitted the making of an agreement "to require as a condition of
employment membership [in the union] on or after the thirtieth day following
the beginning of such employment or the effective date of such agreement, which-
ever is the later." (Italics supplied.)
The amendments to the Act became effective on August 22, 1947. At that time
there was no contract in effect between the Company and the Union. The subse-
quent contract which was entered into, effective as of September 22, did not
contain, nor could it then legally have contained, a clause requiring membership
in the Union as a condition of employment cf. C. Hager & Sons Hinge Manufac-
turing Co., 80 NLRB 163, since such provision must necessarily have awaited the
holding of the required election, the certification by the Board, and the negotia-
tion of an agreement between Union and Company for a valid union- shop clause
complying with the provisos of Section 8 (a) (3). Those steps were not com-
pleted until January 6, 1948, with the execution of the supplemental agreement.
Until that date, and for 30 days thereafter, neither the Union nor the Com-
pany could have required membership in the Union as a condition of employ-
ment.' Until then, employees could therefore have refrained from becoming or
remaining members of the Union for any reason, including the nonpayment of
20 The Board and the courts had consistently construed the proviso to Section 8 (3)
narrowly and strictly because the proviso followed a general prohibition of discrimination
and because one seeking to come within such an exception must clearly comply with its
terms. See e. g., the following cases : N. L. R. B. Y. Electric Vacuum Cleaner Co ., Inc.,
315 U. S. 685. 694-5; Hartford Electric Light Co. v. Federal Power Commission, 131 F.
2d 953 , 963 (C . A. 2), cert . den. 319 U . S. 741 ; N. L. R. B . v. Don Juan., Inc., 17S F. 2d
625 (C. A. 2 ) ; The Iron Fireman Maaufacturinq Company , 69 NLRB 19 , 20; Hammond
Lumber Company , 85 NLRB 1320.
, 21 Aeroil Products Co., Inc ., S6- NLRB 639 ; and see University of Pennsylvania Law
Review, Vol . 96, No. 1, Nov . 1947, pp. 101-16, "Union Security Devices and the Taft-
Hartley Act."
NEW YORK SHIPBUILDING CORPORATION 1467
dues, without risking discharge or other discriminatory action by their
employer 22
Those rights, guaranteed in Section 7, are not to be rendered nugatory by the
retroactive application of a union-shop clause entered into in compliance with
Section 8 (a) (3). Indeed, as has been shown, the explicit language of that
section negatives any justification for retroactive interpretation, since it envisions
future, not retroactive, application.
The supplemental agreement containing the union-shop clause similarly en-
visions prospective operation. Thus, beginning with the express recognition of
the "limitations imposed by the Labor Management Relations Act of 1947," the
agreement provides alternatively that the Company will not retain as an employee
any person "unless he be and remain a member of the Union in good standing
insofar as the payment of dues and initiation fees are concerned, or unless, within
thirty days after the date of the execution of this Supplemental Agreement or
after his hiring, whichever is later, he !become and thereafter remains a member
of the Union in good standing, insofar as the payment of dues and initiation fees
are concerned. . . . (Italics supplied.)
Under the checkoff arrangement Jones' dues had been paid for all periods
subsequent to October 1, and that fact was well known to the Company who had
made the checkoff and had remitted the dues to the Union. No loss or suspension
of Jones' membership or of the privileges thereof had been invoked by the Union
at any time prior to the making of the authorized union-shop agreement ; and
Jones thereafter paid currently, through the checkoff arrangement, all monthly
dues as they accrued, again with the full knowledge and cooperation of the
Company.
It is therefore obvious that there was, to the knowledge of the Company and
the Union, no period covered by the contract for which Jones had failed to pay
or to tender the dues uniformly required as a condition of retaining membership
.in the Union.
Under the foregoing circumstances and on the entire record in the case, it is
concluded and found that the Respondent Company discharged Jones on May
25, 1948, because of his suspension from membership in good standing by the
Union. As the Company knew that such suspension had been made for Jones'
failure to pay periodic dues during a period antedating the execution of the
union-shop clause and during a period when there was no valid union-shop clause
in effect, it is found that the Respondent Company discriminated in regard to
22 The Company argues that most of the dues were accrued prior to the effective date of
the amendments and that the Union and the Company would have been under no legal
restraint as to their enforcement . This argument ignores the fact that the earlier con-
tract had expired prior to the accrual of those dues and overlooks the established holding
of the Board in such situations that ( Bercut-Richar(1s Packing Co ., 65 NLRB 1052,
1057-8) :
. . . No legal effect may be given the closed shop provision contained in the
current collective agreements after their expiration date; the inclusion of any such
provision in any new agreements , or action pursuant thereto, would clearly be
contrary to the pioviso in Subsection 8 (3).
To similar effect is the more recent statement in Combustion Engineering Co., Inc.,
86 NLRB 1264:
As the contract was no longer in existence at. the time of Thompson 's discharge, it
could in no event serve as a justification for the discharge.
. Under the original Act, an employer could not rely on a union-security con-
tract as a defense to the discharge of an employee where the contract had expired at
the time of the discharge.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.hire or tenure of employment to encourage membership in the Union in violation
of Section 8 (a) (3) of the Act, and thereby also interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in Section 7, in viola-
tion of Section 8 (a) (1) of the Act.
It is further found that the Respondent Union suspended Jones from member-
ship in good standing because of Jones' failure to pay periodic dues during a
period antedating the execution of the union-shop clause and during a period
when no valid union-shop clause was in effect, and that the Union demanded Jones'
discharge for said reason. As the Respondent Company violated Section 8 (a)
(3) in making the discharge which the Respondent Union demanded; it is found
that the Respondent Union caused the Company to discriminate against Jones,
and thereby violated Section 8 (b) (2) of the Act.
It is further found that by causing the Respondent Company discriminatorily
Jo discharge Jones through the illegal application of its contract, the Respondent
Union restrained and coerced Jones in the exercise of•the rights guaranteed in
Section 7 and thereby violated Section 8 (b) (1) (A) of the Act. Clara Val
Packing Company, 87 NLRB 703; Union Starch and Refining Company, 87
NLRB 779.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Division III, above, appearing in
connection with the operations of the Respondent Company set forth in Division
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 having been found that the Respondents engaged in unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Company on May 25, 1948, discrim-
inated against William Morgan Jones in regard to hire and tenure of employment
to encourage membership in the Respondent Union, and thereby interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7; and that the Respondent Union committed an unfair labor practice
by causing Respondent Company so to discriminate, thereby also restraining and
corecing Jones in the exercise of the rights guaranteed by Section 7.
It will therefore be recommended that the Respondent Company offer to
Jones immediate and full reinstatement to his former or substantially equivalent
position (see The Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 65 NLRB 827), without prejudice to his seniority or other
rights and privileges.
As it has been found that both the Respondent Company and the Respondent
Union are responsible for the discrimination suffered by Jones, it will be recom-
mended that they jointly and severally make Jones whole for any loss of pay
he may have suffered by reason of the discrimination against him by pay-
ment to him of a sum of money equal to the amount that he normally would have
earned. as wages from May. 25, 1948, the date of the Respondent Company's
discrimination, to the date of the Respondent's offer of reinstatement less his net
earnings during such period. The Respondent Company offered credible and
NEW YORK SHIPBUILDING CORPORAT ION 1469
unrebutted evidence that Jones' employment would have been terminated in any
event by a reduction in force on March 11, 1949, and that he would not have
been reached for recall down to October 11, 1949, the date of the hearing. These
established facts warrant the exclusion of the period from March 11, 1949, to
October 11 , 1949, in computing the amounts of back pay to which Jones is entitled.
Whether all or any of the period subsequent to October 11, 1949, should be simi-
larly excluded is a matter which must necessarily be determined at the com-
pliance stage.
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. The Respondent Union, Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 1, C. I. 0., is a labor organization within the.
meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Wil-
liam Morgan Jones, thereby encouraging membership in the Respondent Union,
the Respondent Company, New York Shipbuilding Corporation has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, the Respondent Union has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act. '
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record herein the undersigned recommends that :
1. The Respondent Company, New York Shipbuilding Corporation , Camden,
New Jersey , its officers , agents, successors, and assigns shall :
a. Cease and desist from :
(1) Encouraging membership in Industrial Union of Marine and Shipbuild-
ing Workers of America , Local No. 1, C. I. 0., or in any other labor organization
of its employees , by discriminating in regard to their hire or tenure of employ-
ment or any term or condition of their employment ;
(2) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
b. T ke the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Offer to William Morgan Jones immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges ;
(2) Jointly and severally with the Respondent Union, make him whole for
any loss of pay he may have suffered by reason of their discrimination against
him, in the manner set forth in the section entitled "The remedy" above ;
(3) Post at its plant at Camden, New Jersey, copies of the notice attached
hereto and marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Fourth Region, shall, after being duly signed by the
Respondent Company's representative, be posted by it immediately upon receipt
thereof and be maintained by it for a period of at least sixty (60) consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the Respond-
ent Company to insure that such notices are not altered, defaced, or covered by
any other material :
(4) Notify the Regional Director for the Fourth Region in writing within
twenty (20) days from the receipt of this Intermediate Report and Recom-
mended Order what steps it has taken to comply herewith.
2. The Respondent Union, Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 1, C. I. 0., its officers, agents, successors," and;
assigns, shall:
a. Cease and desist from :
(1) Causing or attempting to cause New York Shipbuilding Corporation to dis-
criminate against an employee in violation of Section 8 (a) (3)- of the Act;
(2) In any other manner restraining or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(1) Jointly and severally with the Respondent Company, make whole William
Morgan Jones for any loss of pay he may have suffered by reason of their dis-
crimination against him, in the manner set forth in the section entitled "The
remedy" above ;
.(2) Post at its offices, if any, at Camden, New Jersey, and post, or offer to
post, at the plant of New York Shipbuilding Corporation, of the same place,
copies of the notice attached hereto and marked Appendix B. Copies of said
notice, to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent Union's representative, be posted by
it immediately upon receipt thereof and be maintained by it for a period of at
least sixty (60) consecutive days thereafter in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall
be taken by the Respondent Union to insure that such notices are not altered, de-
faced, or covered by any other material. Copies of the notice shall be posted
or- attempted to be posted at the plant of the Respondent Company and main-
tained in the fashion set out above ;
(3) Notify the Regional Director for the Fourth Region in writing within
twenty (20) days from the receipt of this Intermediate Report and Recommended
Order what steps it has taken to comply herewith.
It is further recommended that Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 1, in affiliation with the International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., Lodge
No. 801, he dismissed as a party respondent hereto.
NEW YORK SHIPBUILDING CORPORATION 1471
It is further recommended that, unless on or before twenty (20) days from the
receipt of this Intermediate Report and Recommended Order the Respondents
notify said Regional Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
the Respondents to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington, 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order 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 six copies of a brief in support thereof
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire per-
mission 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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 3rd day of March 150.
GEORGE A. DOWNING,
Trial Examiner.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a.Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in INDUSTRIAL UNION OF MARINE AND
SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 1, C. I. 0., or in any other
labor organization of our employees, by discriminatorily discharging any of
our employees or discriminating in any other manner in regard to their hire
or tenure of employment or any terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the right to refrain from any or all of the concerted activities
guaranteed them by Section 7 of the Act, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL MAKE William Morgan Jones whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from becoming or
remaining members in good standing of the above-named union or any other
labor organization, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
NEW YORK SHIPBUILDING CORPORATION,
Employer.
By -----------------------------------------
(Representative) (Title)
Dated --------------------------
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.
APPENDIX B
NOTICE
TO ALL MEMBERS OF
INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL
NO. 1, C. I. 0., AND TO ALL EMPLOYEES OF NEW YORK SHIPBUILDING CORPORATION
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause NEW YORK SHIPBUILDING
CORPORATION, Camden, '}New Jersey, to discharge or otherwise discrimi-
nate against employees in regard to their hire or tenure of employment or
any term or condition of employment to encourage membership in any labor
organization in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of NEW YORK SHIPBUILDING
CORPORATION, its successors or assigns, in the exercise of the right to refrain
from any or all of the concerted activities guaranteed to them by Section
7 of the Act.
WE WILL MAKE William Morgan Jones whole for any loss of pay he may
have suffered because of the discrimination against him.
INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA, LOCAL No. 1, C. I. O.
By ---------------------------------------------
(Representative ) ( Title)
Dated -------------------
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.
,