Ormet Corp.

National Labor Relations Board - Board Decisions

Feb 17, 1965

151 N.L.R.B. 117 (N.L.R.B. 1965)

ORMET CORPORATION 117
WE WILL offer reinstatement to the employees named below, and will give
them backpay from the time of their discharge:
Joe Tinkle Willie C. Rose Thomas Gary
Willie Johnson James Volter C. R. Samuels
Robert Hoke George Fontenette R. J. Washington
James Washington
HERRIN TRANSPORTATION COMPANY,
Employer.
Dated------------------- By---------------------------------- --------(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 296, if they have any questions concerning this notice or com-
pliance with its provisions.
Ormet Corporation and Billie M. Fox
Baton Rouge Metal Trades Council , AFL-CIO and Billie M.
Fox, Charging Party. Cases Nos. 15-CA-2391 and 15-CB-672.
February 17, 1965
DECISION AND ORDER
On October 30, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices alleged
in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision and briefs in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
151 NLRB No. 12.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner and orders
that the Respondent, Ormet Corporation, its officers, agents, suc-
cessors, and assigns, and Respondent Baton Rouge Metal Trades
Council, AFL-CIO, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's Recommended
Order, with the following modifications :
1. Add the following as paragraphs 2(b) under sections A and B
of the Recommended Order and renumber the following paragraphs
accordingly :
"(b) Notify Billie M. Fox if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
2. Immediately below the signature line in Appendixes A and B
attached to the Trial Examiner's Decision, insert the following :
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the
Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The consolidated cases above were initiated by charges filed by Billie M. Fox on
November 14 , 1963, on which the General Counsel, on April 30, 1964, issued his
respective complaints alleging (in Case No. 15-CA-2391) that the Respondent Com-
pany discharged Fox in violation of Section 8(a)(3) and (1), and (in Case No.
15-CB-672) that Respondent Union instigated that action in violation of Section
8(b)(2) and 8 (b)(1)(A) of the Act. The matter was heard before Trial Examiner
A. Norman Somers in Baton Rouge on June 26 and 27, 1964. The General Counsel
and the respective Respondents were represented by counsel, who participated in the
presentation of evidence and have submitted briefs manifesting a close analysis of the
record and a careful researching of the legal issues. Upon the entire record ( as cor-
rected by order issued on notice to the parties and included in the record as Trial
Examiner 's Exhibit No. 2) and my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Ormet Corporation is a Delaware corporation engaged in extracting aluminum
oxide from bauxite. Of its two plants, the one here involved is in Burnside, Louisiana,
which is in the vicinity of Baton Rouge. From that plant, Respondent ships over
$500,000 worth of its products across State lines. The Board's jurisdiction is
uncontested.
ORMET CORPORATION 119
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent, Baton Rouge Metal Trades Council, AFL-CIO, though it is a labor
organization within the meaning of the Act, does not have a membership as such.
Comprising it are nine unions in the Baton Rouge area, which are generally related to
some craft. An employee acquires membership in the Council derivatively only from
membership in one of the component unions. The labor organizations involved in
the events here are the Respondent Council and two of its component unions. These
are Plumbers & Steamfitters, Local 198, hereinafter called the Pipefitters or Local 198,
and International Union of Operating Engineers, Local 213, hereinafter called the
Engineers or Local 213.
III. THE DISCHARGE OF BILLIE M. FOX UNDER THE UNION-SECURITY PROVISION
OF THE CONTRACT BETWEEN THE COMPANY AND THE COUNCIL
A. The underlying issue
Billie M. Fox was discharged by Respondent Ormet Corporation on November 13,
1963, at the behest of Respondent Council, pursuant to a contract requiring, as a con-
dition of employment, membership in the Union. The legality of the contract is not
in dispute, and the issue concerns a dispute over the interpretation of the term "the
Union." The only organization which the contract names as "the Union" is the
Council. However, as previously stated, an employee cannot be a member of it
directly, but only through membership in one of the unions, nine in number, which
comprise it. These are set up along craft lines (Carpenters, Pipefitters, Engineers,
etc.) with separate membership requirements and differing scales of initiation fees
and dues. Fox, although a pipefitter whose craft is embraced by the Plumbers &
Steamfitters (the Pipefitters Union as it was called), managed to get himself admitted
into the Engineers, which he had admittedly sought out because it was a "cheaper"
union to join, and he executed a checkoff authorization for his financial obligations to
it, which the Company honored and which he at no time revoked. The Council
demanded that the Company discharge Fox on the ground that his failure to join the
Pipefitters was in default of the requirements under the contract to join "the Union."
The Company refused to do so as long as he was in good standing with the union
within the Council that he did join, the Engineers. So the Engineers declared him not
"in good standing with" it, although he at no time revoked the checkoff authorization
for the amount of its dues or otherwise dishonored his financial obligations to it. He
was then informed that under the provision of the contract which required membership
in "the Union," he had to join the Pipefitters. He refused because he did not want to
pay its initiation fee, which had meanwhile gone up considerably above what it had
been at the time that Fox acquired membership in the Engineers. (The General
Counsel does not attack the Pipefitters' present fee as "excessive or discriminatory"
within the meaning of Section 8(b) (5) of the Act.) After several extensions of time
given to him to join the Pipefitters, the Council demanded Fox's discharge under the
contract. This time the Company honored the demand, and discharged him. The
issue is whether, under all the circumstances of this case, Fox's discharge, as Respond-
ents claim, was based on a fair and reasonable interpretation of the union-shop
requirement, and hence was within the immunity of the 8(a) (3) proviso, or whether,
as the General Counsel claims, under all the circumstances of this case, Fox's right
to his job continued as long as he did not dishonor the dues obligation of the union
within the Council that accepted him, the Engineers, with the result that his discharge
for not joining the Pipefitters after ouster from the Engineers for a reason other than
failure to tender the Engineers dues was outside the immunity of the 8(a) (3) proviso
and transgressed the respective prohibitions of that section and of 8(b) (2).
B. The facts
1. Organizing and bargaining history
In 1958, Respondent Council began an organizing campaign among Respondent
Ormet's employees. This culminated in a certification issued to it by the Board late
that year and in contractual relations, continuing to the present day under three con-
secutive contracts, beginning December 19, 1958. Each contract is between Ormet as
the Company and the Council as the Union. The recognition clause describes the
unit in the same language as the Board's certification, as follows:
All production and maintenance employees, including storeroom floor clerks, but
excluding all other clerical employees, all professional and technical laboratory
employees, all other professional employees, guards, and supervisors as defined in
the National Labor Relations Act, as amended.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first contract had a "maintenance of membership " clause, requiring the
employee to continue to be a member of the Union if he was one at time of execution
or became one thereafter. The second, executed November 30, 1960, as does the
third, executed February 25, 1963 (which is the current contract), had a "union shop"
clause requiring that:
All employees covered by the Agreement shall [after the time allowed by 8(a)(3)
proviso] acquire and maintain membership in the Union in good standing for the
life of the Agreement . [Emphasis supplied.]
2. Billie Fox's brief membership in the Pipefitters during the first contract
and its background
Fox began to work for Respondent in March 1958 From shortly thereafter until
the end of his employment on November 13, 1963, his job classification was "main-
tenance mechanic, pipefitter." In May 1959, he joined the Pipefitters Union. He
dropped out in August of the same year (because, so he testified, he thought the dues
too high and the quality of representation too low). Although this put him in default
of the maintenance-of-membership requirement of the contract of 1958, so far as the
record shows , he experienced no repercussions . He never rejoined the Pipefitters.
Nor did he join any other union until after the execution of the 1960 contract, which
was the first of the two containing the union-shop requirement. What he did then is
what underlies the whole issue before us. However, for its bearing on what the
term "the Union" conveyed to Fox and the other employees during the early stages at
least, it is noted that when the Council conducted its organizing campaign in 1958, it
held a series of meetings , in which its various representatives , among other things,
explained what affiliation with the Council contemplated.' The employees were told
that the Council had established an "allocation committee," which apportioned the
employees among the component unions on the basis of their job classification-"a
pipefitter ... to the pipefitters union ... an operator to the operating engineers ... a
millwright [to] the millwright union . . and electrician to the electrical workers ...
and so forth." That division extended even to storeroom floor clerks, who were
allocated to the Office Workers Union. The arrangement was, in fact, advanced to
the employees as a "selling point" in favor of "craft" as against " industrial union"
representation, in that during a strike or a layoff an employee "could lean back on
the craft union" for assistance in getting a job elsewhere in his line of work.
Fox admitted he knew about the allocation, and that he and the other employees
were told they should "join your respective craft that you worked in." Accordingly,
he stated that the reason he "joined the Pipefitters Union" in 1959 was that he "thought
it was the correct union that I should join ... because I was a pipefitter." Fox further
admitted that he knew another feature of the allocation-the handling of grievances.
Although the grievance clause of the contract (in the portion permitting stewards to
process them on working time) refers to the "Union Stewards" without, as previously
stated, reference to any component union in the Council, in practice. the Company
receives from the Council a list of names of the stewards for each occupational group
-Jones for the millwrights, Smith for the pipefitters, etc. Here again, although the
list does not specify the component union for which the person so named is the
steward, the employees know that it is the steward for the union to which the job
classification is allocated Thus, Fox admitted he knew that his grievances and that of
all pipefitters are handled by the steward for the Pipefitters Union, not the Operating
Engineers, or any other component union even if he was a member of it. He also
admitted that he knew that "each craft [union] has its own expenses to meet" in
"policing the contract for the persons in their craft " And he admitted that in the
light of all that he had been told about the allocation and how it functioned, it did
"seem strange to [him] that he should be accepted by Local 213 [Engineers] which
wasn't in [his] craft." And this brings us to the second episode of Fox's affiliational
adventures.
3. Fox's affiliation with the Operating Engineers
After the second contract was executed on November 30, 1960, which now required
him to join the Union as a condition of employment, Fox looked for a way to bypass
1 The substance was related by Garfield Kinchen . the then business manager of Operat-
ing Engineers Local 213, who for a while ( in 1960 ) was also president of Respondent
Council , and also by Vincent Noto and J W Guitreau, who too were pipefitters for
Ormet Noto was president of the Council in 1961 and apparently a functionary in it
even in the organizing stage Guitreau is now secretary - treasurer of the Council, but
during the organizing stage, was a rank-and -filer like Fox. What they testified to was
in amplification of what Fox had himself confirmed
ORMET CORPORATION 121
the Pipefitters. He found it in the Engineers, whose dues were $3 a month, as com-
pared with the Pipefitters' $6, and which had no initiation fee (its technical one of $3
being deemed paid by the first month's dues) as against the Pipefitters' $5. The $5
was a "special" rate instituted by the Pipefitters for "organizing" purposes, its regular
fee being then $100 (which, by 1963, when Fox was finally discharged under the third
contract, had gone up to $500), but still it was more than the Engineers' nothing.
Fox had three companions who felt the same way about the unions to which their
occupational classifications were "allocated." These were John Gaudin and Tom
Green, who too were pipefitters, and Tony Bagala, a millwright, whose job was allo-
cated to the Carpenters Union. These four had a fifth companion, Frank Lawrence,
who too sought out the Engineers, but his situation was somewhat different, in that
his job, that of an "instrument repairman," while entailing electrical work which might
have warranted allocating it to the Electrical Workers Union, because of its hybrid
character, was never in fact so allocated, so that when he and those doing similar
work joined the Operating Engineers, their jobs were correspondingly allocated to that
union and their grievances have been processed by its steward. Lawrence simply
serves as a basis of comparison. He, whose job was not allocated to another union, of
course had no difficulty getting into the Engineers. But neither did the other four,
whose jobs were allocated to other unions in the Council. These five had a carpool
companion in the person of one Goff, an operating engineer and a functionary in the
Engineers local. Goff assured them they could join the Engineers and suggested they
come to its forthcoming meeting and speak to Kinchen, its business manager. As
earlier noted (supra, footnote 1) Kinchen at that time, December 1960, was also
president of the Metal Trades Council, his term having the remainder of the month
to run. Their testimony satisfies me (Kinchen's "not to my knowledge" response
thereto notwithstanding) that all five were assured by Kinchen at a meeting of the
Engineers that they were acceptable. Indeed the membership of the Engineers voted
to accept them. The evidence and the circumstances also satisfy me that this occurred
with full awareness of the type of work done by each. Something was sought to be
made of the fact that Fox and Gaudin were not given the oath and that these two and
Bagala did not get "membership books" in the Engineers, in contrast with Lawrence,
the man with the job not allocated to another union, who got such a book. But
Green, though a pipefitter like Fox and Gaudin, also got a membership book, and all
five were treated like members, book or no book. They were given checkoff authori-
zations to sign. These, in the standard form designated the Council as the recipient,
but the amount specified was $3 as charged by the Engineers. The authorizations were
transmitted to the Company, which since January 1961 honored them by deducting
that amount from their pay and remitting it to the Council.2 In July 1961, the Engi-
neers voted on a proposal to raise the dues from $3 to $4. Only members were
entitled to a ballot. All five were given ballots, Lawrence testifying that he saw his
name and that of Fox on the list of eligibles. When the proposal carried, Fox signed
a new authorization on the same form as the old, this time for $4. He handed it for
countersignature to Vincent Noto, who as earlier stated (.supra, footnote 1) was then
president of the Metal Trades Council. Fox testified he told Noto, who was also a
pipefitter and was active in the Pipefitters Union (ibid.), that the money "would go to
the Engineers." Noto testified he did not "recall" this, but admitted countersigning
the checkoff authorization. I am satisfied that he knew of Fox's affiliation with the
Engineers from still another circumstance. He, as president of the Council, had just
completed the first efforts, unsuccessful in that instance, to have the Company compel
Fox to join the Pipefitters. This takes us to the next phase of our narrative.
4. The action of the Council culminating in the discharge of Fox, under the
union-shop clause, for failure to join the Pipefitters Union
a. During the 1960 contract
On March 15, 1961, over 2 months after Fox joined the Engineers, the Council
(through Noto as president) wrote Fox (with a copy to the Employer and to the
Pipefitters local) that:
According to records submitted to this Council by Ormet Corporation, you are
classified as a Pipefitter (MMP), and therefore in accordance with Article III,
2 This is done by a company check for the hemp sum, together with a list giving the
name of each employee, the amount deducted from his pay, and his job classification
The Council then distributes the money among the various component unions The book-
keeper and present secretary-treasurer of the Council testified that the distribution is by
job classification ; I e , each union receives the money collected from all employees in the
job classifications allocated to them, regardless of the Union of which he is a member
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section A-I [the union-shop provision ] shall acquire and maintain membership
in the United Association of Journeymen and Apprentices of the Plumbing Pipe
Fitting Industry AFL-CIO, Local # 198 within thirty-one (31) days from the
date of this letter.
The Company answered that Fox's job classification was properly described. So on
May 31, Noto wrote the Company (with a copy to Fox ) as follows:
The below named individual has failed to tender his initiation fees and dues
within the time allowed by the provisions of Article III of the contract and we,
therefore , request his immediate termination.
B M Fox Clock # 1094
938 North 5th Street
Baton Rouge, La.
On June 23 , 1961 , the Company wrote the Council confirming its oral refusal
earlier that day to comply with the above request, for the reason that:
As we told you, it is the opinion of our labor counsel that such action on our
part would subject us to charge of unfair labor practices under the National
Labor Relations Act.
So long as any of our employees makes appropriate tender of dues and fees to
the Baton Rouge Metal Trades Council, as such, the Act does not permit their
discharge . By the same token, we recognize our obligation under our Agreement
to discharge any employee , who, after warning, fails or refuses to make such
tender.
The letter indicated that the demand in respect to Fox was typical of a like demand
in respect to 14 employees , who included Fox and his fellow pipefitters , Gaudin and
Green, as well as millwright Bagala. The letter, which shows a "cc" routing to these
4 and the other 10, concludes with the notification that:
In order that our position will be fully understood by all concerned we are send-
ing a copy of this letter to each of the employees involved in your request.
So far as appears, for the duration for the 1960 contract , the Council made no
further demands for the discharge of Fox and his fellow pipefitters , Gaudin and
Green. Every fair indication is that it acquiesced in the Company 's interpretation
and recognized them-Fox at least, who is the only one who directly concerns us-as
members of the Council. Thus, as mentioned earlier, Noto the then president of the
Council, although himself a functionary , in the Pipefitters Union, endorsed Fox's
checkoff authorization for the amount of the Engineers dues ($4) as recently voted
on. In explanation of why he signed it he testified that he thought Fox "was signing
a checkoff for the Pipefitters Union." He testified further:
TRIAL EXAMINER: But the dues in the Pipefitters Union was $ 6, wasn't it?
The WITNESS: Well, in some cases it varied a little, because we had some of
the boys paying $ 6 and some $8, whatever the case was , and some of the boys
would make the difference directly, pay it directly.
TRIAL EXAMINER' Well, one's opinion offhand would be that a person in your
position who puts his signature under the signature of a person signing the
authorization card, that it would indicate that it was all right, that the authori-
zation is in good form
The WITNESS: Well, I take it this way, sir, in signing the card , knowing that
Mr. Fox was in the pipefitters union, pipefitters unit , that I didn't know whether
Mr. Fox would make the difference at the hall or what.
Whether the checkoff authorization was deemed a tender to the Engineers, as Fox
testified he informed Noto it was, or tender to the Pipefitters, as Noto testified he
thought it to be, there would appear little question that Fox was regarded as a member
of the Council. From mid-1961, which would be about the time he signed the second
checkoff authorization, to October 1963, he served as a member of the plant safety
committee . This was by designation of the Council pursuant to article VI of the con-
tract, which provides for a six-member committee, composed of "three (3) repre-
sentatives of the Company and three (3) representatives of the Union," and that:
The employees representing the Union on the Safety Committee shall be desig-
nated by the Union.... [Emphasis supplied.]
b. During the 1963 contract
After the current contract was signed on February 25, 1963, the Council renewed
the demand in respect to Fox and his fellow pipefitters, Gaudin and Green. (The
ORMET CORPORATION 123
record is silent concerning the remainder of the 14 involved in the 1961 demand,
except that Bagala, the millwright , at some point , left the Engineers and went over to
the Carpenters Union. ) The first step in the sequence was a "fraternally yours" letter
by the Pipefitters to the Council , dated June 11, 1963, describing Fox, Gaudin, and
Green as "Pipefitters who have dropped their union cards and at the present are
expelled from the [Pipefitters '] membership roll," and:
. requesting that these men be given 30 days to straighten out their union
books and again become a member in good standing , or be terminated by the
Company and replaced by members in good standing.
The Council on July 26 forwarded the Pipefitters ' letter to the Company and advised
that the Council had voted to adopt that demand as its own . The Company on
July 29 , 1963, replied that Green had recently left its employ , and as to Fox and
Gaudin, that its lawyer advised it that:
. we are not obligated under the union security provisions of our contract
to look behind the fact of membership in any one of the components of this
Council. In other words , it is his view that membership in good standing (which
our records indicate that these men enjoy in the Operating Engineers) in any
component at the Baton Rouge Metal Trades Council , is membership in the
"Union" within the meaning of our contract.
The letter then volunteered the following proposal:
... I am sure that you see even more clearly than we do that the entire prob-
lem would be solved from your standpoint if the Operating Engineers did not
permit these employees to achieve and retain good standing through dues -paying
membership in that organization . In other words , all that would be necessary,
in order to make your request for discharge one that we would be required under
our contract to comply with ( and one that could safely be complied with under
the law ) would be for the Operating Engineers to expel these employees from
membership, leaving them with membership in no organization , and therefore,
no membership in the "Union ." We cannot properly inject ourselves into these
internal affairs and act to straighten out what is essentially an internal Union
problem.
But it concluded with an alternative proposal:
since that problem involves , in a large part, the interpretation of the
National Labor Relations Act , we propose as a first step , the filing of a charge,
alleging violation of Section 8(b)(2) of the Act, based on the request for dis-
charge. This will put into motion the machinery of the Board and enable us to
obtain a determination of the question as to whether it would be a violation of
the Act for us to comply with your request. Thereafter , if necessary, we can
come to grips with the problem under our contract language.
Of the two proposals , the one adopted was the first . On August 14, the Engineers
wrote Pipefitters a "fraternally yours" letter as follows:
This is in reply to your inquiry by phone about two weeks ago concerning the
status of J. B. Gaudin and Billie M . Fox in our Union.
These two men are not members in good standing in Local No. 213, IUOE.
Trusting that this is the information you desired, I am
In a letter dated August 22 (in specific response to the Company 's letter of July 29),
the Council sent the Company a copy of the Engineers ' letter of August 14, and
advised it that:
As of this date Mr. Holden [of the Pipefitters] is notifying Mr. Gaudin and
Mr. Fox in detail concerning straightening out their union business.
From then on all communication between the Council and the Company and by them
to Fox and Gaudin was on the premise that they must join the Pipefitters in order to
retain their jobs. On August 22, the Pipefitters wrote Fox enclosing the Council's
letter of that day to the Company and also that Engineers ' "not in good standing" letter
of August 14, and demanding that he "file an application for reinitiation and that your
reinitiation fee of $536 be paid in full 30 days from the receipt of this letter." The
Pipefitters made the same demand on Gaudin. The $536 consisted of $500 to which
the Pipefitters' regular initiation fee had meanwhile gone up ( and which , as earlier
mentioned , the General Counsel does not assail as being in violation of 8(b)(5)),
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the $36 was apparently the dues these two (during the present contract , assuming
membership in the Pipefitters ) would have paid to it in excess of what they paid the
Engineers.3
The rest can be summarized rather briefly . Fox and Gaudin did not protest the
declaration of the Engineers that they were "not in good standing in [it]," or make
any inquiry of it or the Company-presumably because of familiarity with its back-
ground and purpose. From then on their contracts were with the Pipefitters. They
filed a formal application for membership in it, and at a meeting with its executive
board in October ( supra, footnote 3) were told that they would be given time to pay
the $536. Gaudin complied and has continued in the Company 's employ. Fox testi-
fied that while he was agreeable to the payment of $36 in back dues, he resisted pay-
ment of the $500 and made efforts to have the initiation fee lowerd . However, when
questioned on that point on cross-examination , he stated that he would have been
willing to pay up to $50, but not more. At any rate, the Pipefitters wrote Fox on
October 18 (with a copy to the Company and the Council ) advising him that he was
being given an additional 30-day extension ; i.e., to November 8, in which to comply.
On November 12, the Council and the Pipefitters wrote a joint letter to the Company
advising it that the Pipefitters "has made every effort to get this man to pay his
reinitiation fee" and , in view of his refusal , "under the terms of the agreement we
request his discharge ." The Company transmitted this letter to Fox on November 13,
and advised him that he was "hereby suspended for a period of five (5) days, effective
immediately , with your discharge as a probably ultimate action."
This ended Fox's employment with Ormet Corporation.
C. Conclusion
(1)
It may be stated preliminarily that we are not faced here with, nor need we
decide, whether under a contract of the kind here involved , an employee like Fox
would in the first instance have satisfied his obligation under the doctrine of Union
Starch & Refining Co . v. N.L.R B.,4 by bypassing the union of his craft and tender-
ing the dues and initiation fees of any component union of his choice , in this instance,
the Operating Engineers . The General Counsel at the hearing took the broad posi-
tion that that would have been sufficient My offhand view stated at the hearing
that this position would be an "absurdity" has undergone some modification. The
certification , after all, did not run to any specific union but to them compositely in
the person of the Council , and the breadth of the unit for which the certification
was sought and obtained by all of the unions collectively in the person of the Council
was such that a given occupational group, even if it unanimously voted against any
representation could, by being outvoted by the working force as a whole, find itself
represented by the Council as a result of an election in a unit, described as "produc-
tion and maintenance ," which cut across all craft lines Thus, the claim here made
that the contract contemplated that every employee join the union to which his
occupation had been "allocated," lacks this basic requisite, there is no indication, as
there cannot be under the kind of unit for which the certification was issued, that
any given component union had been designated by the requisite majority of the
employees in the occupational group "allocated " to it. Without suggesting that this
last item is conclusive , it can be said that it at least ]ends some color of validity to
the broad position taken by the General Counsel at the hearing, so that it is not quite
the "absurdity" that I had originally thought.
(2)
The General Counsel , however , does not press that broad position , as he feels he
does not have to under the facts of this case . We may assume with the Respondents
that what the employees had been told during the organizational campaign of 1958
furnished a background from which they should have understood that in the first
instance at least, they should have taken the requisite steps for affiliating with the
-They were so told by the executive board of the Pipefitters in October 1963 when
they applied for admission to the Pipefitters . They were informed that all moneys that
had been theretofore deducted under their checkoff authorizations for the Engineers dues
had been remitted to the Pipefitters by the Council under the arrangement previously
described ( supra, footnote 2), whereby the Council distributes the checked -
off sums to the
component unions according to the respective allocations of the job classifications of the
employees , and that this would be credited to their claimed obligations to the Pipefitters
4186 F 2d 1008 ( C A 7), cert . denied 342 U.S 815
ORMET CORPORATION 125
union of their craft. Giving added strength to that assumption is the previously
noted admission on the part of Fox that he "thought [the Pipefitters] was the correct
union that I should join," and that it "seemed strange to [him] that he should be
accepted by [the Engineers]." But "strange" as this might be it was nonetheless an
actuality. The Engineers did accept him, and one in Fox's position would have a
right to assume that this union, which is a component union of the Council and acts
with an ostensible authority comparable to that of partners in a business enterprise,
would understand the meaning of the contract better than he. Most especially is
this so when the official who then spoke for the Engineers, Garfield Kinchen, then
also ostensibly spoke for the Council as its president. Fox and his companions thus
not only had the right to rely on the assurances of the Engineers, they did rely on
on them by signing the checkoff authorization required of them by the Engineers.
(3)
If the letter which the Council sent to Fox on March 15, 1961, and the shortly
ensuing demands upon the Company for the discharge of Fox and the other pipe-
fitters bear construction as a repudiation of the action of the Engineers in accepting
them, then the Council's action after the Company's letter of June 23, 1961, which
rejected the demand, can reasonably be construed as acquiescence in the ground on
which the Company based its rejection. The Company stated that so far as it is
concerned an employee has met the requirements of the contract as long as he
"makes appropriate tender of dues and fees to the ... Council, as such." After this
letter, Noto, as president of the Council and himself active in the Pipefitters, counter-
signed his approval of Fox's checkoff authorization for the $4 monthly dues of the
Engineers. This action connoted a recognition of Fox as a member of the Council,
whether it be, as previously stated, on the basis of an understanding which Fox
testified he conveyed to Noto that the money was to go to the Engineers, or as Noto
said he understood it to be, a tender of dues, however partial, to the Pipefitters.
Further, Fox's designation by the Council as one of the three union members of the
safety committee confirms the fact that Fox was deemed to be a member of the
"Union" within the meaning of the contract.
(4)
Added to the ostensible acquiescence of the Council in the Company 's interpreta-
tion of the contract during the remainder of the term of the contract of 1960, is its
conduct in executing the contract of 1963 in the identical language of the contract
of 1960. Knowing now how the Company interpreted the term "the Union" as used
in the 1960 contract , it was incumbent upon it to have the new contract clarified in
accordance with the interpretation on which it had demanded the discharge of Fox.
Far from doing so, it adopted in the new contract the identical language which was
used in the old. In effect , therefore , it was adopting the interpretation enunciated to
it by the Company during the preceding contract. Cf . Corbin, Contracts § 538
(1960 ed. ). Certainly an employee in Fox's position would have every reason to as-
sume that the Council accepted that interpretation . Ibid.; Hurd v. Illinois Bell
Telephone Co., 136 F. Supp . 125, 153 (D.C. Ill. 1955 ), affd. 234 F. 2d 942 (C.A. 7),
cert. denied 352 U.S. 918.
(5)
Oddly enough , the Company in responding on July 29, 1963, to the renewed
demand of the Council for the discharge of Fox, did not depart from the interpre-
tation it had given the contract in 1961. Instead it reaffirmed it. It regarded Fox
to be protected as long as he continued in good standing with the union to which
he was a dues-paying member-the Engineers . However, instead of standing by an
outright rejection , as during 1961, it volunteered two alternative methods of meeting
the situation . The first was that the Engineers declare Fox ( and the similarly situ-
ated Gaudin ) as "not in good standing" with the Engineers . Its second proposal
was that it , the Company , as the party in the middle , file an 8(b) (2) charge against
the Council, which would shift the burden of decision from the two of them onto the
Board
It requires little imagination to know which would have been the wiser course.
See Oil, Chemical and Atomic Workers International Union, AFL-CIO and its Local
8-718 (United Nuclear Corporation , Fuel Division), 148 NLRB 629, where an
employer faced with a comparable situation did file an 8 (b)(2) charge . The Com-
pany instead acted on the first proposal . What the Company overlooked was that
the Engineers ' declaring Fox and Gaudin to be "not in good standing" with it would
not solve the problem, if in the language of the proviso to Section 8(a)(3), this was
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done "for reasons other than the failure ... to tender the periodic dues ... uniformly
required as a condition of . . . membership ." The Company is hardly in a position
to deny it had "reasonable grounds for believing" that the action of the Engineers
in declaring Fox and Gaudin "not in good standing" was "for reasons other than the
failure ... to tender the periodic dues." It can hardly be heard to claim incapacity
to put two and two together in a situation where it formulated the equation and
inserted the first digit in it, and more especially when these two employees had not
revoked the manifestation of a continuing tender, which was in the Company's own
possession , their checkoff authorizations.
(6)
Fox and Gaudin having thus been ousted from membership in the Engineers, and
by that token in the Council , for reasons other than the failure to pay the uniformly
required dues, the discharge of Fox for failure to acquire membership in the Pipe-
fitters was a violation of the respective prohibitions of 8 (a ) ( 3) and 8 (b) (2) of the
Act The result however would not be different even if Respondents had a colorable
basis for the claim that , despite the entire course of conduct previously described,
Fox and Gaudin could legitimately be required to transfer their membership from
the Engineers to the Pipefitters . To do so would have required giving equitable effect
to the fact that for nearly 3 years Fox and Gaudin were recognized by Company
and Council alike as members of the Council on the strength of a membership in the
Engineers . At best to Respondents , such a transfer could only take effect on the
theory that it would be formalizing what was equitably in effect from the time that
the Engineers , as one of the "partners" of Pipefitters within the Council , admitted
them into the membership . Indeed, the Council 's practice regarding the distribution
of the checkoff dues implicitly embraces such a premise . The Council has asserted
that the moneys that it receives from the Company pursuant to the checkoff authori-
zations are distributed among the component unions on the basis of the respective
"allocations" of the job classifications This is saying , in effect, that the checkoff
authorizations , regardless of what union an employee joins, are deemed to be tenders
to the union to which their jobs are "allocated " Noto, indeed , gave that as the
reason for his endorsing Fox's dues checkoff authorization in 1961. In these cir-
cumstances , the employment of Fox and Gaudin could not validly have been con-
ditioned in 1963, on their payment of an initiation fee in the Pipefitters higher than
the one prevailing when they acquired membership in the Council through their
acceptance , in January 1961, in the Engineers . Here the insistence of the Pipe-
fitters on payment of a sum a hundredfold higher than what was required of Fox
and Gaudin when they were diverted from joining the Pipefitters by the conduct of
a component union within the Council-whatever the legality of the higher fee
under Section 8(a) (5)-was, equitably considered, a refusal to make "such mem-
bership ... available to [them] on the same terms and conditions generally applicable
to other members." The action of Respondent thus was outside the immunity of the
8(a)(3) proviso on two grounds : First, as previously stated, their ouster from the
Council by being declared not "in good standing " by the Engineers was for reasons
other than failure to tender the requisite dues. Second , assuming that despite the
above, membership in the Pipefitters could nevertheless be required of them, the
condition here imposed was, equitably considered , unconscionable , and punitive, and
a departure from the requirement of nondisparateness of terms and conditions of
availability.
(7)
It follows from the above that the Company by discharging Fox in the circum-
stances above described , discriminated against him in violation of Section 8(a)(3)
and (1 ) of the Act , and that the Council in causing and attempting to cause such
discrimination violated Section 8(b)(2) and 8 ( b)(1) (A) of the Act.
As stated previously , John Gaudin capitulated by paying what was demanded of
him, including the $500 initiation fee in the Pipefitters . But he is not named in
either the charge or the complaint The question is whether his case was neverthe-
less fully litigated . The correspondence , up to the point in which he made the capitu-
lation which accounted for the retention of his job , covered him and Fox together.
And the dealings with Gaudin on the part of the Respondents and the two unions
within the Council were in all respects the same as with Fox, except that he knuckled
under and Fox did not . Gaudin testified as a witness in the case and he was sub-
jected to cross-examination . In these circumstances Gaudin's case could be said to
be before us within the doctrine of such cases as Fort Wayne Corrugated Paper
Company v . N.L.R.B., 111 F. 2d 869, 872-873 (C.A. 7) ( case of employee Wentz);
American Newspaper Publishers Association v. N.L.R .B., 193 F. 2d 782 , 799-800,
ORMET CORPORATION 127
(C.A. 7), cert. denied 344 US . 812-if the scope of the complaint , at least in its
general language , were sufficient to embrace him. As I read the complaint, it
could hardly have had language more limiting in its scope . It is confined to Fox's
case alone , not merely in the factual allegation , but even in the conclusionary alle-
gation, which condemns the conduct as a violation in respect to "an employee." At
no time did the General Counsel suggest that this case encompassed Gaudin. Nor
does he do so now In these circumstances , it cannot be said that the parties were
put on notice that the legal effect of their conduct in respect to Gaudin was put in
issue. I shall therefore make no finding concerning it.
IV. THE REMEDY
The cease -and-desist order will be limited to the particular violation found, and
the affirmative remedial measure will embrace the usual status quo restoring require-
ment of an immediate comprehensive reinstatement offer ( The Chase National
Bank of the City of of New York, San Juan, Puerto Rico, Branch , 65 NLRB 827)
from the Company to Fox (with a letter from the Council to it and Fox , advising of
withdrawal of any objection thereto ) and joint and several reimbursement of Fox
by Company and Council for the wage losses resulting from his discharge in accord-
ance with F. W. Woolworth Company , 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 716. The Council 's liability for backpay runs up to the time the
Company makes such offer or until 5 days after the Council writes it has no objec-
tion , whichever is earlier.
Upon the foregoing findings and on the entire record , I hereby make the following:
CONCLUSIONS OF LAW
1. The term "the Union ," as used in article III of the contract of 1963, on the
background of what occurred during the life of the earlier contract containing the
identical provision , is to be interpreted as requiring Fox to do no more than continue
to tender the dues of the Operating Engineers , to which he had been admitted. By
so doing, he had fulfilled the requirement of article III that he "maintain member-
ship in the Union in good standing for the life of this Agreement ," within the mean-
ing of the provision as therein worded.
2. Fox's membership in the Operating Engineers , and hence in "the Union" within
the meaning of the contract of 1963, was terminated for reasons other than the fail-
ure to tender the periodic dues and the initiation fees uniformly required by the
Operating Engineers ( and hence of the Union within the meaning of the 1963 con-
tract ) as a condition of acquiring or retaining membership.
3. By discharging Fox with reasonable grounds for believing that his membership
in the Union was terminated as described in conclusion No. 2, above , Respondent
Corporation discriminated against Fox in violation of Section 8(a)(3) of the Act.
4. By attempting to cause and causing the Corporation so to discriminate against
Fox, Respondent Council violated Section 8 ( b) (2) of the Act.
5. By the conduct described in conclusion No. 3, above , the Corporation inter-
fered with , restrained , and coerced employees in the exercise of their rights as guar-
anteed in Section 7 of the Act , thereby violating Section 8(a)(1) of the Act.
6. By the conduct described in conclusion No. 4, above , Respondent Council
restrained and coerced employees in the exercise of the above -mentioned rights,
thereby violating Section 8 (b) (1) (A) of the Act
7 The above unfair labor practices affect commerce within the meaning of Sec-
tion 2 ( 6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and on the entire record , and pur-
suant to Section 10(c) of the Act, I hereby recommend that:
1. Respondent , Ormet Corporation , its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Invoking article III as contained in the contract of February 25, 1963, or as
contained in any future contract , to discharge or dsicriminate against any employees
for nonmembership in Baton Rouge Metat Trades Council, AFL-CIO, where it has
reasonable grounds for believing that such membership was denied or terminated
for reasons other than the failure of the employees to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring or retaining mem-
bership, or was not made available on the same terms and conditions as other
members.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interfering with , restraining , or coercing employees in the exercise of their
rights under the Act in a manner similar to that described in (a) above.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer Billie M. Fox immediate and full reinstatement to his former or a sub-
stantially equivalent position , without prejudice to his seniority or other rights and
privileges.
(b) Jointly and severally with the Respondent Council make Billie M. Fox whole
for any loss in pay by reason of his discharge on November 13, 1963, in the manner
stated in the section entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other data relevant to compliance with
paragraphs ( a) and ( b) above
(d) Post at its plant copies of the attached notice marked "Appendix A ." 5 Copies
of Appendix A, to be furnished by the Regional Director for Region 15, shall, after
being duly signed by the Company 's representative , be posted by it immediately upon
receipt thereof , and be maintained by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Respondent to insure that said
notices are not altered , defaced, or covered by any other material.
(e) Upon being furnished the same by the Regional Director , post the notice
marked "Appendix B ," in the same manner as Appendix A.
(f) Notify the Regional Director for Region 15, in writing, within 20 days from
the date of the receipt of this Decision , what steps it has taken to comply with the
foregoing Recommended Orders
II Respondent, Baton Rouge Metal Trades Council , AFL-CIO , its officers , repre-
sentatives , and agents ( including its constituent unions ), shall:
1. Cease and desist from:
(a) Causing or attempting to cause Ormet Corporation to discharge or discriminate
against any employee under article III, as contained in the contract with it dated
February 25, 1963, or continued in any further contract , for nonmembership in
Respondent Council, where membership was denied or terminated for reasons other
than failure to tender the periodic dues and the initiation fees uniformly required as
a condition of acquiring of retaining membership , or was not made available on the
same terms and conditions as other members.
(b) In any similar manner restraining or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Notify Respondent Ormet Corporation with a copy to Billie M. Fox that it
withdraws its objection to its employing Billie M. Fox and will not oppose his
reinstatement.
(b) Jointly and severally with Ormet Corporation make whole Billie M. Fox for
any loss in pay sustained by reason of his discharge on November 13, 1963, in the
manner set forth in the section entitled "The Remedy "
(c) Post in its office and meeting hall and in the offices and meeting halls of the
component local unions having members among the employees of Ormet Corporation,
the attached notice marked "Appendix B." % Appendix B, to be furnished by the
Regional Director for Region 15, shall , after being duly signed by Respondent Coun-
cil's official representative , be posted by it immediately upon its receipt thereof, and
be maintained and cause to be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent Council and its agents to
insure that such notices are not altered , defaced, or covered by any other material.
(d) Mail or deliver to the Regional Director for Region 15 copies of Appendix B
for posting by Ormet Corporation for 60 consecutive days in places where notices to
employees are customarily posted. Copies of the notice , to be furnished by the
Regional Director for Region 15, shall, after being duly signed by the Council's
official representative , be forthwith returned to said Regional Director for such posting.
5If the Board adopts this Recommended Order, the words "a Decision and Order" will
replace "the Decision and Recommended Order of a Trial Examiner " in the Appendix
If the Order is enforced by court decree . the words used shall be "a Decree of the United
States Court of Appeals, Enforcing an Order "
6If the Board adopts this Recommended Order, the notification shall be within 10 days
from the Order ; in the event of court enforcement it will 10 days from , Decree.
7 See supra, footnote 5
ORMET CORPORATION 129
(e) Notify the Regional Director for Region 15, in writing, within 20 days from
receipt of this Decision , what steps it has taken to comply with the foregoing
provisions.s
8 See supra, footnote 6.
APPENDIX A
To ALL EMPLOYEES OF ORMET CORPORATION
Pursuant to the Decision and Recommended Order of a Trial Examiner of the
National Labor Relations Board, and in order to effectuate the policies of the Labor
Management Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against Billie M. Fox or
any other employee under article III of our contract with Baton Rouge Metal
Trades Council , AFL-CIO, because of nonmembership in the Council, where
that employee has been denied membership for a reason other than failure to
tender the uniform dues or initiation fees , or where membership has not been
made available on the same terms and conditions as to all other members For
that purpose under the contract as presently in force, an employee whose tender
of dues and initiation fee has previously been accepted by any union within
the Council will be deemed to be in compliance with article III as long as he
continues to tender the regular dues of that union either outright or by keeping
his checkoff authorization for the amount of that union 's regular monthly dues
in force.
WE WILL offer immediate and full reinstatement to Billie M. Fox to his former
or a substantially equivalent position , without prejudice to seniority or other
rights and privileges , and WE WILL jointly and severally with Baton Rouge Metal
Trades Council , AFL-CIO, make good to him with interest all pay he lost by
reason of his discharge of November 13, 1963.
ORMET CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days after date of posting, and
must be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana , Telephone
No. 529-2411, Extension 6396, if they have any question concerning this notice or
compliance with its provisions.
APPENDIX B
To ALL EMPLOYEES OF ORMET CORPORATION
Pursuant to the Decision and Recommended Order of a Trial Examiner of the
National Labor Relations Board, and in order to effectuate the policies of the Labor
Management Relations Act, we hereby give notice that:
WE WILL NOT cause or attempt to cause Ormet Corporation to discharge or
otherwise discriminate against Billie M. Fox or any other employee under article
III of our contract with Ormet Corporation because of nonmembership in Baton
Rouge Metal Trades Council , AFL-CIO, where that employee has been deprived
of membership for a reason other than failure to tender the uniform dues and
initiation fee, or where membership has not been made available to him on the
same terms and conditions as all other members. For that purpose , under the
contract as presently in force, an employee whose tender of dues and initiation
fee has been previously accepted by any union in our Council will be deemed
to be in compliance with article III thereof, as long as he continues to tender
the regular monthly dues of that union either outright or by keeping his checkoff
authorization for the amount of that union 's regular monthly dues in force.
WE WILL write Ormet Corporation and Billie M. Fox that we withdraw our
objection to its employment of Fox or to his reinstatement , and WE WILL, jointly
and severally , with Ormet Corporation , make good to him with interest all pay
he lost by reason of his discharge on November 13, 1963.
BATON ROUGE METAL TRADES COUNCIL , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
7 S 3-13 3-6 6-v o f 151-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days after date of posting, and
must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any question concerning this notice or
compliance with its provisions.
Indiana Rayon Corporation and Kentuckiana Joint Board, Amal-
gamated Clothing Workers of America, AFL-CIO. Case No.
P25-CA-1688. February 17, 1965
DECISION AND ORDER
On May 21, 1964, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in unfair labor practices and recommending that
the complaint be dismissed. Thereafter, the General Counsel, Re-
spondent, and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connections with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent with this
Decision.
In the summer of 1962, Kentuckiana Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, herein called the Union,
began an active organizational campaign at Respondent's plant. On
July 21, 1962, the Union informed Respondent by letter that it rep-
resented a majority of the employees, that it would prove its major-
ity status with a check of signed authorization cards, and that it
was requesting a meeting for the purpose of negotiating a contract.
S. A. Rosenfield, Respondent's president, replied to this letter, set-
ting a tentative date for such meeting for August 2, 1962.
On July 31, 1962, Respondent's attorney informed the Union that
"in view of the fact that the Company has no reason to believe that
your organization represents a majority of its employees .... [the]
meeting for the purpose you suggest would not be appropriate at
this time .... [the] tentative meeting set for Thursday, August 2,
1962, is indefinitely postponed."
151 NLRB No. 5.