New York State Electric & Gas Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1962

135 N.L.R.B. 357 (N.L.R.B. 1962)

NEW YORK STATE ELECTRIC & GAS CORPORATION 357
New York State Electric & Gas Corporation and Calvin G.
Crosby
Local 249, International Brotherhood of Electrical Workers,
AFL-CIO and Calvin G. Crosby
New York State Electric & Gas Corporation and Allen J.
Sanderson
Local 249, International Brotherhood of Electrical Workers,
AFL-CIO and Allen J. Sanderson . Cases Nos. 3-CA-1544-1,
3-CB-500-1, 3-CA-1544-92, and 3-CB-500-2. January 19, 1962
DECISION AND ORDER
Upon unfair labor practice charges filed on January 6, 1961, by
Calvin G. Crosby, an individual, and on January 9, 1961, by Allen J.
Sanderson, also an individual, against Respondents, New York State
Electric & Gas Corporation, and Local 249, International Brother-
hood of Electrical Workers, AFL-CIO, herein respectively called
New York Electric and Local 249, the General Counsel of the Na-
tional Labor Relations Board by the Regional Director for the Third
Region issued a consolidated complaint and notice of hearing, and an
amendment to complaint, alleging that New York Electric and Local
249 had terminated the employment of the above-mentioned indi-
viduals in violation of Section 8(a) (3) and (1) and 8(b) (2) and
1(A) of the National Labor Relations Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959. Copies of the
complaint and amendment to complaint, charges, and notice of hear-
ing were served upon Respondents and the Charging Parties.
With respect to the unfair labor practices, the complaint and
amendment to complaint alleged that the collective-bargaining agree-
ment between New York Electric and Local 249 contained a union-
security provision that did not comply with Section 8(a) (3) of the
Act because it did not grant the full 30-day statutory grace period
before requiring newly hired employees to make application for union
membership. It was further alleged that Local 249, by demanding
the discharge of the above-mentioned individuals for failure to tender
dues, and New York Electric, by complying with that demand, did
engage in and were engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b) (2) and (1) (A), and
8(a) (3) and (1) of the Act, respectively. Thereafter, Respondents
filed answers denying the material allegations of the complaint and
its amendment.
Between June 29 and July 21, 1961, all parties entered into a
"Stipulation of Facts," waiving a hearing and the taking of testimony
before a Trial Examiner, the making of findings of fact and conclu-
135 NLRB No. 42.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions of law by a Trial Examiner, aiid the issuance of an Intermediate
Report and Recommended Order. They further agreed to submit the
case directly to the Board for findings of fact, conclusions of law, and
order based upon a record to consist entirely of the charges, complaint,
amended complaint, answers, and the "Stipulation of Facts" and ex-
hibits attached thereto.
On August 9, 1961, the Board approved the stipulation and trans-
ferred the case to itself. Thereafter the General Counsel, New York
Electric, and Local 249 filed briefs. -
Upon the basis of the stipulation, and upon the entire record in the
case, the Board makes the following :
FINDINGS OF FACT
I. JURISDICTION
New York State Electric & Gas Corporation is, and at all times ma-
terial herein has been, a corporation duly organized under the laws
of the State of New York, with principal office and place of business
at 108 East Green Street, Ithaca, New. York. During the course
and conduct of its business operation for the calendar year 1960, it
sold and distributed from its various generating plants and transmis-
sion lines electrical power to domestic, industrial, and commercial
users of a value in excess of $50 million, of which amount at least 5
percent was sold to enterprises engaged in interstate commerce. The
parties admit, and we find, that New York State Electric & Gas Cor-
poration is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 249, International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
IH. THE FACTS
Local 249 and New York Electric have been parties to a collective-
bargaining agreement covering the latter's production employees
since about 1946. The agreement herein involved became effective on
July 1, 1958, was modified on July 1, 1959, and expired on July 1, 1961.
It contained the following union-security clause.
(A) The Brotherhood has proved to the satisfaction of the Com-
pany that it represents a majority of all Production Workers, as
defined in Section (B) below, of the Company. Accordingly, the
Company recognizes the Brotherhood as the sole and exclusive
collective bargaining representative of the employees in the said
bargaining unit and agrees to meet and treat with authorized
representatives of the Brotherhood with respect to the rates of
NEW YORK STATE ELECTRIC & GAS CORPORATION 359
pay, hours of labor, and other conditions of employment of such
employees. The Company recognizes representatives of the
International Brotherhood of Electrical Workers and of the
System Council as authorized representatives of the Brotherhood.
(B) Production Workers are defined as those whose work is
chiefly of a physical character, who handle tools, operate ma-
chinery or equipment as evidenced by the schedule of jobs marked
Exhibit "'A" and attached hereto and made a part hereof. For
the purposes of this Agreement, the word "Employees" shall ap-
ply to the regular, full-time employees in the bargaining unit
covered by this Agreement and shall include persons temporarily
employed to replace employees within the bargaining unit, who
have been granted a leave of absence.
(C) All employees within the bargaining unit who were mem-
bers of the Brotherhood as of the effective date of this Agreement
or who thereafter become members, shall, as a condition of con-
tinued employment, remain members in good standing during
the period of this Agreement. All persons newly hired during
the period of this Agreement for job classifications covered hereby
or thereafter permanently transferred to job classifications within
the bargaining unit, shall, as a condition of employment, be
required to make a bona fide application for membership in the
Brotherhood within thirty days after date of their employment
or transfer. All persons not now members of the Brotherhood
who were hired after January 1, 1941, for classifications within
the bargaining unit or subsequent to their employment trans-
ferred to classifications within the bargaining unit, shall be re-
quired to make bona fide application for membership in the
Brotherhood within 30 days of their transfer to a position within
the bargaining unit. In the event that an employee covered
hereby fails to comply with the requirements of this section, the
Company shall, within thirty (30) days after receipt of written
notice from the Brotherhood, discharge such employee. [Em-
phasis supplied.]
Allen J. Sanderson was an employee of New York Electric from
September 1953 to October 22, 1960. During all times material to
this decision Sanderson was a production worker as defined in clause
(B) of the contract set forth above. On or about November 1953
Sanderson became a member of Local 249, and paid his dues directly
to its financial secretary. Since January 31, 1960, Sanderson has
failed and, refused to tender or make payment of any dues to Local
249. On or about September 21, 1960, Local 249 requested and de-
manded that New York Electric discharge Sanderson for nonpay-
ment of dues as provided in clause (C) of the agreement set forth
above. On October 22, 1960, New York Electric, after duly notifying
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanderson of Local 249's request and demand, discharged him pur-
suant thereto.
Calvin G. Crosby was an employee of New York Electric from
February 1953 to November 6, 1960. Crosby, like Sanderson, was a
production worker. He became a member of Local 249 in August
1953, and thereafter paid his dues directly to its financial secretary.
Since March 31, 1960, Crosby has failed and refused to tender or make
payment of any dues to Local 249. On or about October 6,1960, Local
249 requested and demanded that New York Electric discharge Crosby
for nonpayment of dues. On November 6, 1960, New York Electric
discharged him in compliance with that request and demand.
IV. DISCUSSION
The General Counsel contends that the provision in the union-
security clause requiring newly hired employees to make application
for membership in Local 249 "within thirty days after date of their
employment or transfer" does not afford such employees the full 30-
day grace period prescribed by the proviso to Section 8(a) (3) of the
Act,' that the entire union-security clause therefore is unlawful, and
that consequently the discharge of any employee pursuant thereto is
also unlawful. The General Counsel relies for his argument on the
Chun King 2 line of decisions. Respondents urge that the Chun King
decision is wrong and should be overruled.
The security clause in question contains provisions for two different
types of employees : those who are members of Local 249 on the effec-
tive date of the agreement, and those who are hired during the life of
the agreement. The first group are required to maintain their mem-
bership in good standing during the contract term; the second group
are required to join Local 249 "within thirty days after their
employment...." 2
Sanderson and Crosby were employees of Respondent Company
and members of Local 249 at the time the collective-bargaining agree-
ment became effective on July 1, 1958. They were therefore required
to maintain their membership in good standing until the contract
'The relevant portion of the proviso to Section 8(a) (3) states:
. . . nothing in this Act, or any other statute of the United States, shall preclude
an employer from making an agreement with a labor organization . to require as
a condition of employment membership therein on or after the thirtieth day follow-
ing the beginning of such employment or the effective date of such agreement , which-
ever is the later . . .
2 Chun King Sales, Inc ., 126 NLRB 851 (Member Fanning dissenting ). In that case a
majority of the Board held that a union -security clause requiring all new employees to
become members of the union "within thirty ( 30) days from the date of their employ-
ment" was unlawful because it did not afford new employees the full 30-day grace period
in which to decide whether to join the union . The majority also found that in practice
the new employees did not enjoy the benefit of a 30-day grace period.
$The General Counsel makes no contention that the next to last sentence of para-
graph ( C) of the union -security clause is unlawful . Accordingly , the Board does not
pass on the validity of this sentence.
NEW YORK STATE ELECTRIC & GAS CORPORATION 361
expired on July 1, 1961. Such a provision for maintenance of mem-
bership is lawful' The General Counsel nevertheless contends in
effect that the otherwise lawful maintenance-of-membership clause
is tainted and has become unlawful because the requirement for acqui-
sition of membership in Local 249 by new employees is unlawful.
In 1952, the Board decided that a union-security clause requiring
employees to apply for membership "within 30 days after commencing
work" was lawful.' That clause is substantially identical with the
disputed provision in the present case. The Al Massera determination
was, in substance, overruled in the Chun King case in which a majority
of the Board (Member Fanning dissenting) held that a contract pro-
vision requiring new employees to become members of the union
"within thirty (30) days from the date of their employment" was
unlawful because it failed to provide the full statutory 30-day period
before new employees were required to join the union. The Board
has reconsidered the Al Massera and Chun King decisions and a ma-
jority of the Board now believes that the interpretation of the "within
30 day" phrase in Al Massera was correct, that is, in ordinary under-
standing "within 30 days" is equivalent to the statutory "on or after
the thirtieth day." 5 We accordingly find that the disputed 30-day
clause of Respondents' contract is lawful,' and thus find it unnecessary
to pass on the validity of the General Counsel's "taint" theory. We
therefore further conclude that the discharge of Sanderson and Crosby
for not complying with a valid maintenance-of-membership require-
ment in the same contract also was lawful. Accordingly, we shall
dismiss the complaint in its entirety.
4 Charles A . Krause Milling Co., 97 NLRB 536.
6 Al Massera, Inc., et al., 101 NLRB 837.
6The first proviso to Section 8 (a) (3) of the Act permits employers and unions to make
union-security agreements which "require as a condition of employment membership [in
such union ] on or after the thirtieth day following the beginning of such employment or
the effective date of such agreement , whichever is the later, . . . "
In Industrial Rayon Corporation , 130 NLRB 427, footnote 1, Member Kimball similarly
expressed the view that the phrase "within thirty ( 30) days" is in complete conformance
with the statutory expression "on or after the thirtieth day."
We do not regard the enforcement of the Board ' s Order in Industrial Rayon Corpora-
tion, supra, as necessarily inconsistent with the above holding. N.L.R B. v. Industrial
Rayon Corporation, 297 F. 2d 62 ( C.A. 6) In Industrial Rayon, a panel of the then
Chairman Leedom and Members Rodgers and Kimball unanimously found that a union-
security clause requiring employees to join the union "within thirty ( 30) days" was
unlawful , but for different reasons. Member Kimball said the clause was unlawful because
the union had not been in compliance with Section 9(f), (g), and (h) of the Act at the
time the contract was executed Chairman Leedom said it was unlawful because it did
not give employees the full statutory 30 days in which to join the union . Member
-Rodgers approved both grounds set forth by his colleagues In enforcing the Board's
Order, the court in a per curiam opinion simply recited the facts and the different
reasons stated by the panel members for the unanimous conclusion that the union -security
clause was unlawful without indicating whether it endorsed both of the expressed legal
reasons In any event, we would respectfully disagree if the court 's per curtain opinion
is viewed as an affirmance of the holding that a requirement that an employee join a
union "within thirty ( 30) days" is unlawful.
7 To the extent that it is inconsistent with the above, the Chun King decision is
hereby overruled
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. New York State Electric & Gas Corporation is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Local 249, International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The evidence does not establish that Allen J. Sanderson and Cal-
vin G. Crosby were discharged in violation of Section 8(a) (3) and (1)
and 8(b) (2) and (1) (A) of the Act.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOat dissenting :
We cannot concur in our colleagues' determination to overrule Chwn
King Sales, Inc., supra. In that case, the Board held, and in our view
correctly so, that a union-security clause requiring employees to join
the union "within thirty (30) days from the date of their employment"
exceeded the permissive limits of the Act. Section 8 (a) (3) of the Act
authorizes at the most a contract provision requiring union member-
ship "on or after the thirtieth day following the beginning" of em-
ployment. Contrary to our colleagues' holding that "within" 30
days is equivalent to "on or after" 30 days, we believe it patent that the
two clauses are not the same, and that the clause requiring membership
"within thirty days" does not accord employees the full 30-day grace
period guaranteed by the Act. This view has been endorsed by the
Court of Appeals for the Sixth Circuit. N.L.R.B. v. Industrial Rayon
Corporation, 297 F. 2d 62.
Accordingly, we would adhere to Chun King, and find the union-
security clause in issue here unlawful.
E. W. Jemison and Frank Conwell , Partners, doing business as
Jemcon Broadcasting Company and Radio Broadcast Tech-
nicians Local Union No. 1264, International Brotherhood of
Electrical Workers, AFL-CIO. Case No. AO-29. January 19,
1962
ADVISORY OPINION
This is a petition filed by Radio Broadcast Technicians Local Union
No. 1264, International Brotherhood of Electrical Workers, AFL-
CIO, herein called the Petitioner, for an Advisory Opinion in con-
formity with Section 102.98 of the Board' s Rules and Regulations,
Series 8.
135 NLRB No. 48.