Paramount Pictures, Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1948

79 N.L.R.B. 557 (N.L.R.B. 1948)

In the Matter Of PARAMOUNT PICTURES, INC. and ELIZABETH WHALEN,
ELIZABETH CARBERRY , AND ELEANBR JACKSHIES
Case No. 9-C-6529.-Decided September 9, 1948
DECISION
AND
ORDER
On October 10, 1947, Trial Examiner Frederic B. Parkes, 2nd, issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (1) and (3) of the Act 1
as alleged in the complaint and recommending that the complaint
against the Respondent be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, counsel for the
Board filed exceptions to the Intermediate Report, and the Respond-
ent filed a brief in support of the Intermediate Report.
The Board 2 has reviewed the rulings of Trial Examiner William P.
Webb, who conducted the hearing, and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report of Trial Examiner Parkes, the
exceptions and the brief, and the entire record in the case.
Upon our analysis of all the evidence in the case, including, among
other things, the submission of the dispute between the Respondent
and the Union to arbitration, the participation of the present charg-
ing parties, Elizabeth Whalen, Elizabeth Carberry, and Eleaner
Jackshies, in the arbitration proceeding, and the award of the
arbitrator and the Respondent's subsequent acts in reliance thereon,
we hereby adopt the findings, conclusions, and recommendations of
Trial Examiner Parkes.
Although, under all the circumstances, we agree with the ultimate
conclusion of Trial Examiner Parkes that the employees involved were
members of the Union on the effective date of the maintenance-of-
2The provisions of Section 8 (1) and (3) of the National Labor Relations Act are con-
tinued in Section 8 ( a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management
Relations Act, 1947.
2 Pursuant to the provisions of Section 3 (b) of the amended Act, the Board has delegated
its powers in connection with this case to a three -man panel consisting of the undersigned
Board Members [Houston , Reynolds , and Gray].
79 N. L. R. B., No. 74.
557
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership provisions of the 1945 contract between the Respondent
and the Union, and were subject thereto, we do not, by our agreement,
necessarily adopt as our own the principles set forth by Trial Exam-
iner Parkes in his Intermediate Report by which he resolved the issues
in this case.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, Paramount Pictures, Inc., New York City, be,
and it hereby is, dismissed.
INTERMEDIATE REPORT,
Mr. Bertram Diamond, for the Board.
Simpson, Thacher & Bartlett; liy Mr. Edward L. Coffey, and Mr. H. Burr Kersey,
of New York City, for the respondent.
Boudin, Cohen & Glickstein, by Mr. I. Philip Sipser, of New York City, for the
,Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by Elizabeth Whalen, Elizabeth Car-
berry, and Eleaner Jackshies, individuals residing in New York City, herein called
the complainants, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Second Region (New York City), issued its com-
plaint, dated July 1, 1947, against Paramount Pictures, Inc., New York City, herein
called the respondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the first
-amended charge, together with notice of hearing thereon, were duly served upon
the respondent, the three complainants, and Screen, Office and Professional Em-
ployees Guild; Local 109, United Office and Professional Workers of America,
'C..I. 0., herein called the Union.
,, With respect to the unfair labor practices, the complaint alleged in substance:
(1) that on or about September 9, 1946, the respondent discharged and thereafter
refused to reinstate Elizabeth Whalen, Elizabeth Carberry, and Eleaner Jack-
shies for the reason that each of them refused to become members in good stand-
ing of, or to pay dues and assessments to, the Union, and (2) that by such acts and
'conduct, the respondent interferred with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act and violated Section
8 (1) and (3) of the Act.
On July 9, 1947, the Union filed with the Regional Director a petition for leave
to intervene in these proceedings, which was granted by the Regional Director
on July 10, 1947.
On July 11, 1947, the respondent filed its answer in which it admitted certain
allegations of the complaint in respect to its corporate existence, the operation
of its business, and the discharge and refusal to reinstate the three complain-
ants, but denied that it had engaged in or was engaging in any unfair labor
i
PARAMOUNT PICTURES , INC. 559
practices within the meaning of the Act As an affirmative defense, the re-
spondent averred that the complainants were discharged at the request of the
Union, because they failed to comply with the terms and provisions of a col-
lective bargaining agreement then existing between the Union and the respondent.
,An answer to the complaint was also duly filed by the Union.
Pursuant to notice, a hearing was held at New York City, on July 14 and 15,
1947, before W. P., Webb, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondent, and the Union were represented by
`counsel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and' to introduce evidence bearing on the
issues was afforded the parties.
At the beginning of the hearing, counsel for the Union moved to dismiss the
complaint in its entirety. The motion was denied with the privilege of renewal.
At the conclusion of the Board's case-in-chief, counsel for the respondent moved
to dismiss the complaint in its entirety. The motion was denied. At the con-
clusion of the hearing, the motions to dismiss the complaint were renewed by
the respondent and the Union. Ruling on these motions was reserved. Dis-
position of these motions is made hereinafter. A motion made by the Board's
counsel to conform the pleadings to the proof in respect to formal matters was
granted without objection. At the conclusion of the hearing, all parties argued
.orally on the record. Thereafter, the respondent filed a brief and also proposed
findings of fact and conclusions of law.'
Since the close of the hearing on July 15, 1947, Trial Examiner Webb has died.
Inasmuch as an intermediate Report with respect to this proceeding had not
been prepared by Trial Examiner Webb prior to his death, the undersigned has
been designated, by special order of the Chief Trial Examiner, to act in the
place and stead of Trial Examiner Webb for the purpose of preparing and issuing
an Intermediate Report in this proceeding The undersigned has carefully read
the entire record in the proceeding, including all exhibits offered and received in
evidence.
On the basis of the foregoing and upon the entire record in the case, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Paramount Pictures, Inc., a New York corporation, is engaged in the business
of producing and distributing motion picture films and licensing them for ex-
hibition. It produces feature pictures in Hollywood, California, and in the year
ending December 31, 1941, shipped approximately 37 negatives of feature pictures
from California to New York City, where it made a total of approximately 4360
prints which were shipped from New York to film exchanges in various parts of
the United States. Paramount maintains and operates film exchanges in the
District of Columbia and 15 States, including an exchange in New York City,
herein called the Exchange!
The business of the Exchange is transacted at an office which is separate and
distinct from the home office in New York City of Paramount Pictures, Inc. The
business of the news division of Paramount Pictures, Inc. and that of the Music
1 As will appear hereinafter, the respondent's proposed findings of fact and conclusions of
law are accepted
2 Paramount Film Distributing Corporation, a wholly owned subsidiary of Paramount
'Pictures, Inc., operates 16 other exchanges located in other States.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Companies are also transacted in separate office buildings. At its news office,
Paramount develops negatives of news reel pictures taken throughout the world
and screens, edits, cuts, synchronizes, and prints them. In the year 1941, ap-
proximately 1,000 of these prints were released weekly and distributed through-
out the United States and Canada. Pictures known as short subjects are also
produced at the news office.
Famous Music Corporation and its wholly owned subsidiary; Paramount Music
Corporation, are both New York corporations engaged in the music business.
During the year ending December 31, 1941, Famous Music Corporation shipped
or caused to be shipped from New York City to points in States of the United
States other than New York, approximately 115,000 music sheets. During the
same period, Paramount Music Corporation shipped or caused to be shipped
from New York City to points in States of the United States other than New
York, approximately 75,000 music sheets.
The respondent concedes, for the purpose of this proceeding, that it is engaged
in commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
Screen, Office and Professional Employees Guild, Locals 1 and 109, United
Office and Professional Workers of America, are labor organizations affiliated
with the Congress of Industrial Organizations, admitting to membership at vari-
ous times employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
1. The issue
The only issue is whether the three complainants were subject to discharge
under a maintenance of membership provision in a contract between the re-
spondent and the Union.' In the main, there is no serious dispute as to the
facts.
2. Membership provisions of the Union's constitution and by-laws
The revised constitution of the United Office and Professional Workers of
America, CIO, herein called the National Union, in effect from September 1942
to September 1944, contained the following provision regarding membership in
the Union :
... Application for membership in the Local Union shall be made in writ-
ing and shall be accompanied by the payment of the initiation fee and
the dues for the first month. Upon the approval of the application and ac-
ceptance of initiation fee and dues by the National Union, the applicant shall
become a member in good standing of the Local Union.
The constitution further provided that a new member should take a prescribed
oath of allegiance and should receive, upon acceptance into membership, a
membership card and a copy of the constitution of the National Union and bylaws
of the local union.
3 The parties stipulated that the business operations of the respondent during the year
1946 were substantially the same as its operations during the year 1941.
4 The record contains no evidence of antipathy on the part of the respondent to the union
activities of its employees. Nor is there any suggestion in the record that dual unionism
was a factor in the dischargs of the complainants.
PARAMOUNT PICTURES, INC. 561
Membership in good standing was defined by the constitution as follows :
. . . A good standing member shall be one who is not in arrears more than
two (2) months' dues. A member who is in arrears more than two (2)
months shall automatically lose his good standing in the Union and shall
lose the privileges of voting, nominating, making or seconding motions,
holding office, and participating in membership meetings. This shall not
apply to members who are on strike, during the period of the strike.
The constitution also provided that members might be fined, suspended, or ex-
pelled for wilful violation of the constitution or bylaws, for misappropriation of
funds or property, for working in an office which was on strike, and for refusing
or wilfully neglecting to pay dues, assessments, fines, or other financial obliga-
tions to the National Union or the local. However, the constitution assured
that "No member may be suspended by a Local Union without trial." The
constitution of the National Union was revised in September 1944 and again in
February 1946, but no substantive changes were made in the above provisions.
Bylaws for Local 109 and Local 1 contained provisions respecting membership
in accord with those of the constitution of the National Union.
3. Organizational history of the Union and its contracts with the respondent
On October 29, 1942, the Board issued its Decision and Direction of Elections,'
pursuant to which elections to determine the collective bargaining representative
of the respondent's employees in five appropriate collective bargaining units
were conducted. The Union won the election in three of these units and was
certified by the Board as the statutory representative of such employees on
February 19, 1943 e
On May 10, 1943, the respondent and the Union executed a collective bargaining
contract covering the employees in two of the appropriate units for which the
Union had been certified by the Board as the statutory representative.ea The
contract contained the following provisions respecting maintenance of membership
in the Union :
(2) a. All present employees now members of Guild [i. e. the Union] or
who hereafter become members of Guild, and all new employees, members
of Guild or who become members of Guild will be required as condition of
their continued employment by Company [i. e. the respondent], to maintain
their membership in Guild in good standing during the life of this contract.
If a Guild member fails to remain a member in good standing, Guild agrees
to notify Company in writing of the employee's failure to maintain such
good standing and Company agrees that within fourteen (14) days after such
written notice, it will discharge said employee unless said employee becomes
a member in good standing within said period. Any employee so discharged
shall not be entitled to severance pay.
b. For purpose hereof, the term "remain a member in good standing" shall
be deemed to mean that such member is not in arrears in the payment of his
dues, initiation fee and assessments.
e Matter of Paramount Pictures, Inc., Famous Music Corporation and Parasiiount Music
Corporation, 45 N. L. R B. 116
9 Matter of Paramount Pictures, Inc., Famous Music Corporation and Paramount Music
Corporation, 47 N. L It. B. 737.
Ga The complainants were employed in these units.
562 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Company agrees that fifty-one percent (51%1)',of its employees shall be
members of the Guild during the term hereof. Subject to such requirement,
Company shall be free at all times to employ and discharge employees with-
out regard to membership or non-membership in Guild or otherwise.
The contract provided that any dispute arising therefrom, unless adjusted by
mutual agreement between the parties, should be settled by arbitration. Pro-
vision was also made for continued negotiation between the parties with respect
to job classifications and salary schedules and for resulting salary adjustments
to be retroactive in effect to October 5, 1943 The contract also stated that if
substantial agreement in this regard had not been reached by October 5, 1943,
the matter should be submitted to arbitration. Copies of the contract were printed
by the respondent and distributed to the employees.7
The contract was for a term ending July 28, 1944. During its term, the Union
entered into extensive negotiations with the respondent, as well as other com-
panies in the industry, with respect. to job classifications and wage,schedules,
culminating in an arbitration proceeding which ultimately settled the matter on
December 3, 1945. In the meantime. the original contract between the respondent
and the Union was extended from time to time by oral understandings and writ-
ten memoranda agreements, providing for an uninterrupted continuity of con-
tractual relationship between the parties. During the term of the last extension
agreement continuing the contract in effect until July 27, 1945, the Union entered
into a "Memorandum of Settlement" with the respondent and other companies in
the industry whereby it was agreed that a new contract should be executed in the
future and that meanwhile the Perms of the original contract should be extended
until July 27, 1946, with certain modifications.
On August 6, 1945, the respondent and the Union, executed a second collective
bargaining! contract, containing thefoDoi^g.provisions with respect to mainte-
nance of membership in the Union :
All present employees now members of the Union or who hereafter become
members of the Union and all new employees, members of the Union or who'
become members of the Union, will be required as a condition of their eon-
tinued employment by the Companies, to maintain their membership in the
Union in good standing during the life of this contract. If a Union member
fails to remain a member in good standing, the Union agrees to notify the
Companies in writing of the employee's failure to maintain his good standing
and the companies agree that within fourteen (14) days after such written
notice it will discharge said employee unless said employee becomes a mem-
ber in good standing within said period. Any employee so discharged shall
not be entitled to severance pay. For the purposes hereof, the term "remain
a member in good standing" shall be deemed to mean that such member is not
in-arrears,in the payment of his dues, initiation fee and assessments.
The Companies agree that at least 65% of the employees shall be members
of the Union during the term hereof. It is understood, however, that the
provisions of this paragraph shall be enforced, if necessary, only with respect
° The finding is based upon the testimony of Irene Sullivan , personnel and pay - roll man-
ager of the respondent . Whalen testified that she never saw a copy of the contract and Car-
berry stated at the hearing that she never read the contract . Inasmuch as it is a common,
practice for employers to print copies of collective bargaining contracts and to distribute
them to the employees covered by the contract , the undersigned credits Sullivan 's testimony
in this regard and finds that the complainants had notice of the 1943 contract and its union
security provisions
PARAMOUNT PICTURES, INC. 563,
to new employees hired by the Companies. If the percentage of Union mem-
bership is below 65% at the date of the execution of this contract, or if there-
after the percentage of Union membership falls below 65% during the term
hereof, and the Union desires to enforce the provisions of this paragraph,
it shall first give written notice to such fact to the Companies, and second,
if requested by the Companies, shall` furnish evidence satisfactory to the
Secretary of the American Arbitration Association, or his designee, as to the
then existing percentage of Union membership. Upon the receipt of such
notice and a certificate of the said Secretary of the American Arbitration
Association or his designee of the percentage of Union membership, the Com-
panies agree that thereafter they will enforce this provision solely as to new
employees (this shall not include former employees of the Companies now in
the armed services or who may hereafter be members of the armed services
of the United States), and will require new employees to become Union
members at the ratio of three out of every five new employees, until the-per-
centage of Union membership in the unit is 65% It is understood, however,
that the provisions of this paragraph shall not operate, unless the Union
complies with the conditions above stated. New employees required to
become Union members under the provisions of this paragraph shall do so
within thirty days following their employment.
Until such time as the Union membership reaches 65%, as aforesaid, at
least a majority of the employees shall be members of the Union.
The contract reiterated the arbitration provisions of the first agreement. The
contract was made retroactively in effect from July 28, 1944, and provided that
it should terminate July 27, 1946. By written agreement of the parties, the con-
tract was extended in effect until September 25, 1946. The respondent posted
copies of the contract on 12 bulletin boards.8
During the course of this contractual history, the Union, that is Local 109, with
the approval of its membership amalgamated and merged with Screen, Office
and Professional Employees Guild, Local 1, United Office and Professional Work-'
ers of America, herein at times called Local 1, early in 1945. On April 1, 1946,
the merger was dissolved and Local 109 again became a separate entity.'
4. Membership of complainants in the Union
On May 26, June 25, and November 28, 1942, respectively, Whalen, Jackshies,
and Carberry individually signed an "Application Blank" for membership in the
Union. Each of these "Application Blanks" contained the following pertinent
legend :
8 This finding is also based upon the testimony of Sullivan. Testimony of the complain-
ants with respect to wage increases received pursuant to the contracts and arbitration
proceedings between the respondent and the Union indicate that the complainants had
knowledge of the contracts and their provisions. Upon the entire record, it is found that
the complainants had notice of the union security provisions of this contract.
9In setting forth the collective bargaining history in the text, the undersigned has not
distinguished between Local 109 and Local 1 but has referred to each as the Union. It is
clear that in the merger of Local 109 and Local 1 and its subsequent dissolvement the con-
tinuity of the organization originally certified by the Board was preserved The undersigned
finds no merit in the argument of counsel for the Board that the merger affected the mem-
bership status of employees who were members of Local 109 but not in good standing at
the time of the merger. See Continental Oil Company v. N. L R. B, 113 F (2d) 473
(C C. A. 10) enf'g 12 N L R. B. 789.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPLICATION BLANK
(This information will be treated strictly confidential)
SCREEN OFFICE & PROFESSIONAL EMPLOYEES GUILD LOCAL 109
Stamp name and number of local union here
UNITED OFFICE & PROFESSIONAL WORKERS OF AMERICA C. I. 0.
Date ---------------- 194--
I hereby request and accept membership in the above named union, and of
my own free will authorize the United Office & Professional Workers of
America C. I. 0., their agents or representatives to act for me as a collective
bargaining agency in all matters pertaining to pay rates, salaries, hours of
employment and other conditions of employment
Jackshies paid her initiation fee of $2.00 in July 1942, and her monthly dues and
assessments as they fell due in July, August, September, October, and Novem-
ber 1942. Jackshies testified that in December 1942, employee Barbara Bratchko,
who was the Union's floor captain for Jackshies' department and whose chief
duties in such position was to collect union dues and assessments, attempted to
collect from Jackshies the monthly dues of $1.00 and an assessment of 75 cents,
that Jackshies refused to pay either the dues or the assessment, and that she
informed Bratchko that she did not desire to continue as a member of the Union
or to have anything more to do with it. According to Jackshies, Bratchko made
no reply and thereafter made no further attempt to collect dues from Jackshies.,
Bratchko testified that in December 1942, when she asked Jackshies for the
union dues, the latter informed her that she had no intention of paying any more
dues until the Union obtained a raise in wages for her, and that thereafter she
would resume payment of dues. Bratchko further testified that she made no
other requests of Jackshies for dues, even though Jackshies received an increase
in wages in 1943.
Jackshies also testified that about a month later employee Harry Boriskin,
who was chairman of the Paramount Chapter of the Union,10 asked why she had,
discontinued payment of her union dues and she told him substantially the same
that she had told Bratchko, that is, she refused to belong to the Union any
longer or pay any more dues.
Whalen testified that when she signed the "Application Blank" for member-
ship in the Union on May 26, 1942, she informed employee Julius Friedman, a
member of the executive board of the Union's Paramount Chapter, and employee
Charles Iacona that she was financially unable to pay the initiation fee and dues
and that Iacona agreed to pay the initiation fee if she would sign the blank.
Whalen insisted that she never paid any initiation fees or union dues or assess-
ments. However, records of the Union, which were introduced in evidence,
show that Whalen's account was credited with the payment of initiation fee and
dues in December 1942. The undersigned accords credence to the union's records
as to payment of Whalen's initiation fee and dues and finds that they were paid
in December 1942.
According to Whalen's undenied testimony, a few days after she signed the
application card, Friedman asked her to enlist the membership of other employees
and she informed him :
10 Local 109 embraced several chapters , each of which confined its membership to employees
of one of the various employers in the industry.
PARAMOUNT- PICTURES, INC. 565'
. . . I was'not that much interested in the union to seek other members and
that my supervisor had spoken to me about the time he spent talking-to me,
and,-that I wished he would refrain from doing it in the future. He said,
"Well, you have signed a card with the union," and'he said; "Of course,
that doesn't mean anything unless you are able to get other 'people to do the
same thing," and it seems that they designate each member to bring in'five
or-ten others, whatever it was, and I told him that I could 'not do it; and
!,,'was ^sorry that I had signed the card, and that I didn't want -to, be'-any
pai;t'of it. - - . ,
Carberry paid her initiation fee of $2.00 in December 1942, and also the monthly
dues of $1.00: Thereafter, each month she paid dues of :$1.50 for the months of
January, February, March, and April 1943. She also paid an assessment of
$1.00 in March 1943 and another in the same amount in April 1943: In April
1943, she had the following conversation with employee Herbert List, who was
a member of the executive board' and of the grievance committee and who
customarily collected her dues :
At that time, I objected to the fact that the dues had been increased, either
the month before or that month, and I said that I would pay then, but that
I wasn't interested in the union any more, and I didn't want him to bother
me any more with the collection of dues, and from then on; he never bothered
me any more." -
Each of the three-complainants testified that she never received a membership
card or a copy of the Union's constitution and bylaws, that she never took an
of.th- of alle iance to -the Uiiion,-that she never received any communication from
the Union by mail except copies of a union pamphlet entitled "Sopeg," and that
she never attended a meeting of the Union.'' No further request to the,complain-
ants for payment of union dues or assessment was made until November 1945.
5. The demand by they Union for discharge of the complainants
Under date of November 5, 1945, the Union sent the following form letter to
each of the complainants" setting forth the amount of delinquent dues owed by
each :
"The findings in this paragraph are based upon the Union 's re'I!ords respecting the pay-
ment of Carberry 's dues and upon the testimony of Carberry when not in conflict with such
records She testified, that she was of,the opinion that her last payment of dues'was made
in May 1943 and that the conversation with List occurred 'at that time However, the
Union's records show no payment having been made by Carberry in May 1943 Her testi-
mony that the dues were increased in either April or March is not credited . The Union's
records reveal that the increase in dues became effective in January 1943.
"A conflict in testimony exists with respect to receipt by the complainants of member-
ship cards, copies of the constitution and bylaws, and other material trom the Union.
Both at the arbitration hearing and the instant proceeding , Jackshies admitted that she
destroyed all envelopes received in the mail bearing a return address of the' Union'.
Officers for the Union insisted that records of the Union which were introduced into evi-
dence showed that the names of the complainants had been processed on an addressograph
at the Union 's offices and that customarily following such processing they should have
received copies of the constitution and bylaws , membership cards, notices of meetings, as
well as the Union brochure, SOPEG, which was admittedly received.
" Whalen may have been requested to pay her dues in 1944. Dues Collector Robert
McKeown testified, and Whalen denied, that lie urged Whalen several times in 1944 to pay
her delinquent dues.
14 According to the undemed testimony of Herman Liveright, chapter chairman' of the
Union, the same letter was sent to 40 or 45 members who were in arrears in the payment
of dues and assessments Approximately 25, or more , of these members immediately paid
809095-49-vol. 79-37
566. DECISIONS OF NATIONAL -LABOR';RELATIONS BOARD
Through the new contract almost, every, union member at Paramount,
except certain relatively new employees-of the Company, has-won a,salary
increase, retroactive payments, . or both. Now those members, who owe
back dues can and must get themselves into ,good,standing.. -
The Paramount Chapter Executive 'Board, Jw;consultations with 'leaders
of• the Guild, has decided to exact, payment ;for. all- dues owed since and
including the month of, August, 1944.'•` - You will be given until Friday,
November 16, 1945,,to make good., You will receive your retroactive check
on Friday, November 9, and we urge that you try to pay up what you- owe,
in full on that day. _
You owe for` the months Au 1gust'1944 tliiough November 1945 and assess-
ments 1945.
The amount you owe' is $ _^_ 16 - `
We are'sure that once you have been reinstated,iii good standing you will"
want to pay your monthly dues regulaily,'id order to live up, to your obliga-
tious as a`union member, to do your bit to"make the new contract work for
you and your fellow employees, to make the union strong enough to fulfill
the tremendous promise of the period just ahead: ' ' , -
See your floor captain or Mary Brady,'Chapter Treasurer. • • '
Each of the complainants ignored the letter and made no payment In Febru-
ary 1946, each of them discussed the Uriion's'request for payment of dues and
assessments with Herman Liveright, chairman of the Paramount Chapter of
the Union. Jackshies told him that she'was'willing to pay her delinquent dues
if the Union would cancel her membership and return her application for mem-
bership card. Liveright refused-the offer.
Carberry testified that she had the following, conversation with Liveright in
regard.to the arrearage,in dues:, '-
Well, I told him thatI had been advised that he liad'informed the company
that I was a member of the union and, that, I owed money and, I was not
maintaining my membership. So I told him what happened in 1943, and I
told Herbert List that I was resigning and I wanted `no part of the union
any more and I didn't care to belong to it and not to bother me any more,'
and that nothing had been done in those years, and he stipulated that I was
still a member, and that I had joined the union and I could not resign, that
my resignation could not be accepted.
I told him that if he thought that I was- obligated to the extent of the
money stated in the letter; I• would pay it, but I would not care to be a member
of the union, that I wanted my resignation accepted.
However, as I say, he stipulated that there was no way of resigning from
the union and no resignation would be accepted and I was obligated to pay
that money, otherwise my dismissal would be requested.17 ,
their delinquent dues or made arrangements to pay them Some 12 or 15, however, did
not respond to the communication and the Union • sought the aid of the respondent 's officials ,
to bring the recalcitrant members into good standing without resorting to invocation of the
maintenance of membership provisions of the contract between the respondent and the Union.
16 It will be recalled that the second collective bargaining contract executed on August 6,'
1945, by the respondent and the Union was retroactive in effect until July 28, 1944. How-
ever, the original contract of May 10, 1943, with similar provisions for union security, had
been in effect until the execution of the second contract
16 Jack-shies and Whalen were each asked to pay $30.00. The amount due from Carberry
was $38 00.
17 According to Carberry , in; ;March ' 1946 ,,,she, had, a conversation with Paul Raibourn,
vice-president of the respondent , in-which she related to him her contention in respect to`
ld
PARAMOUNT-PICTURES,'INC. - : 567.-
'Whalen testified as follows in respect to her conversation with Liveright:,..
I told him that I didn ' t consider myself a member of the union, and I'was
never given • to understand by the union that T was a 'member, and he told me
that I definitely was, that I had signed the card.
I'then' told him that if he'felt that I , was obligated to the union for that
amount' of money, that I would pay it, provided I would be permitted to resign
from the union , as I didn 't feel that I was financially able to continue paying
the union dues that they demanded and the assessments of money that they
demanded.
He told me that there was no possible way for me to resign from the union,
not while I was in Paramount . I would have to terminate my position with
Paramount. `
On April 23, 1946, the Union formally requested by the following letter that the
respondent discharge the three complainants because of their failure to maintain
their membership in good standing-
The following employees of your company are no longer members ' in'good
standing of our union :
Elizabeth Carberry -
Elizabeth Whelan
Eleanor Jackshies
As you know, under our contract, members of the union, as a condition
of employment, are required to maintain their membership in good standing-
The above named persons, not having done so, we ask that they be discharged.
Under date of April 24, 1946, George A. Barry, attorney for the respondent,
sent to each of the three complainants the following letter :
In a letter dated April 23rd, 1946 the Union refers' the Company to its
contract with Union dated August 6th, 1945, and, under the provisions of
Article 2 thereof relating to maintenance of Union membership,in good
standing as a condition of employment, requests the Company to discharge
you because of your failure to maintain your Union membership in good
standing.
You are respectfully requested to deliver to Mr. Raibourn's office on or
before Monday, April 29th, 1946 a written statement setting forth reasons,
if any, why the Company should not comply with the Union's request
Following Barry's suggestion, Carberry wrote Vice-President Raibourn the
following letter under date of April 26, 1W6:
In reference to Mr. George A. Barry's communication of April 24, 1946,
please be advised that since May 19433, when I last paid dues to the Screen
Office and Professional Employees Guild, Local 1 U. O. P. W. A., C. I O..
I have not considered myself a member of that organization. At that time
I informed the Dues Collector, who is no longer with Paramount of my
desire to have no further relations with the above mentioned Union. Whether
or not my wishes were brought to the attention of the Union, I do not know
But, since I was never approached or requested from that time on to pay
the dues and assessments demanded by the Union . Raibourn suggested that she pav the
Union a nominal sum under protest , in order to obviate immediate discharge . Shortly
thereafter, Carberry paid $2.25 to Mary Brady, treasurer of the Paramount Chapter, under
protest. Subsequently, Carberry had another conversation with Liveright, in which she
told him that she had paid $2.25 to the Union under protest. Liveright replied that she
could not resign and would have to pay dues and assessments.
568. DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
any. dues to the organization , I assumed that my membership , had been
discontinued. This was favorable to me because I, did not believe in the
C. I. O. organization and had no interest in their workings or efforts.
However, in November 1945, I received, from the Union, Headquarters, a
form letter stating that I was obliged, as a member to pay, dues including
August 1944, through November L1945 plus assessments in the amount of
$38.00. I disregarded this notification, since considering myself out of the
organization I was not bound as a member by the last contract entered into
by the- Union and the- Company. - Thereafter, there were many- implied
threats circulated 'arid so `I contacted the"Uii n Chairman, to see if there
wasn't some error in the Union's, claim on my, status as a member. The
Union was and has been so insistent upon claiming my membership that
I tried on several occasions to come to some agreement with the Union
Chairman; but to no avail.
After my discussion- with you in, March. 1946, and a few days later with
Mr. Herman Liveright, I finally decided that in order to, avoid any future
annoyance. with, the Union having been upset and. worried on so, many
occasions, to make an effort to pay the Union dues. Therefore, I paid, more
,or less under duress, to Miss . Mary. Brady, Chapter Treasurer, on March 22,
1946, one mouth's dues ($2.23); which, amount was all that I could afford
at the time. It was accepted. I made no specific arrangements for future
payments but having made an initial payment showed evidence of good
faith towards continuing them, when my finances permitted: My financial
responsibilities at home are heady and I haven't been able to make another
payment as yet.
In view of-tie fact.that the. Union has accepted my money, I feel that
it is showing undue discrimination . against me in asking the Company for
my dismissal . I am aware of any, number of employees, who are members
and who are not in good standing, owing the Union large amounts in delin-
quent dues and who have not at, any time been as harassed as I have been.
I firmly believe that the Union is using me as an example to induce the
numerous other employee members, to pay their Union dues I intensely
feel that I am being discriminated against and do not understand why I should
be dismissed . when there are so many more employees who are not members
in good standing.
On April 29, 1946, Jackshies sent Vice-President Raibourn the following; letter,
pursuant to Barry's request :
In reference to Mr. George A. Barry s letter of, April -24, 1946. I am re-
quested to deliver to you, the reason why the Company shall not comply
with the Union's request to terminate my employment with the Company.
In June - 1942 I signed an application for membership. in the Union and
paid dues until December 1942. At that time having no interest in the
Union, I made that fact known to several representatives of the Union.
Since I was never approached or requested to pay dues after that date, I
assumed my membership was discontinued.
I respectfully request that the Company notify the Union that as a non-
member I am not subject to the provisions of the Company's contract.
On April 29, 1946, Whalen complied with Barry's request by the following,
letter to Raibourn :
Mr. George A. Barry's letter of April 28, 1946, referred to a communica-
tion received by the Company. from, the above, organization, wherein the
PARAMOUNT PICTURES, INC. -569
Union stated that my retention as an employee of the Company is dependent
upon the maintenance , in good standing, of my membership in said union.
Mr. Barry's letter offered me an opportunity to reply to the Union's conten-
tion, and requested that my letter be addressed to you.
At the outset, I must make it clear that I am not a member of the subject
Union. In May 1942. when the Union was seeking members throughout the
Company, I may have indicated an interest in the Union's activities, but
since that time I have not paid any clues, attended meetings, or evidenced
in any way whatsoever, that I was a member of the organization. Since
May 1942, through to the present, I have made my nonmembership known
to various representatives of the Union, who sought to encourage my interest
in the organization.
Whatever interest, if any, I may have shown in the Union paring its or-
ganizing campaign does not give to the Union the right to claim me as a mem-
ber. Article 2 of the Union's bylaws, set forth the formalities to be complied
with before an applicant is accepted to membership. Section 6 of Article 2
provides that "Applications shall first be approved by the Executive Com-
mittee of the appropriate Guild and shall be further subject to acceptance
by the General' Executive Board of the Union whereupon the applicant, after
taking oath of membership, shall be constituted a member in good standing
of the Union "'e I have never taken the prescribed oath nor have I in any
other way sought to qualify for membership.
I respectfully request that the Company notify the Union that as a non-
member I am not subject to the provisions of the Company's contract with
the union.
6 -The arbitration proceeding
Following the receipt of the letters from the complainants, the respondent wrote
the Union the following letter on May 6,1946:
The above named employees [referring to the complainants] dispute your
right under the contract to request their discharge because they claim they
are not members of your'Union and that you are discriminating against them-
These statements raise questions of fact between you and them concern-
ing which we have little or no information on which to base conclusions.
In such circumstances we can take no action.
You may elect to arbitrate these questions as a dispute under Paragraph
6 of our agreement. If so we would be willing to accept such arbitration as
a method of determining the facts.
Thereafter, the respondent and the Union agreed that the question of whether
the complainants were subject to the maintenance-of-membership provision of
the contract should be submitted to arbitration, pursuant to the terms of the
contract. On June 6, 1946, each of the complainants was notified by the respond-
ent of this decision by the following letter : .
In connection with the Union's request that the Company discharge you
for failure to maintain your alleged union membership in good standing
please be informed that the matter is in the hands of the American Arbitra-
tion Association. As soon as possible an arbitrator will hear and decide the
issues.
Because your right to continued employment is at stake you will be afforded
adequate opportunity to participate in the arbitration proceedings.
I r,qf 11
Tins reference is to the bylaws of Local 1.
-570 DECISIONS OFD NATIONAL LABOR RELATIONS BOARD
Later, on June 19, 1946, each of the complainants was notified of the date of
the arbitration proceeding by the following letter from the respondent:
The first hearing in the case involving the Union's request to discharge
you, concerning which I wrote to you on June 6th, 1946, has been set for
10: 30 A. M. on Friday, June 28th, 1946 at the Hearing Rooms of the Amer-
ican Arbitration Association, 9 Rockefeller Plaza, New York City ; Mitchell
M. Shipman, Esq. will be the arbitrator.
You'should be present and should be prepared to defend your job"security.
You have a right to be represented by Counsel of your own choice: The
Company authorizes and requests you to be present throughout the entire
proceedings.
A hearing in the arbitration proceeding was held on June 28 and July 1, 1946,
before Mitchell M. Shipman. The respondent and the Union were represented by
counsel, as were the complainants who were permitted to intervene in the pro-
ceedings.'s On August 6, 1946, Arbitrator Shipman issued his Opinion and Award,
finding the complainants subject to the maintenance-of-membership provisions
of the contract between the respondent and the Union, granting them a period
of one month in which to pay their back dues and assessments computed from
July 1944, thereby becoming members in good standing, and ordering that in the
event they failed to make such payments, the respondent should discharge them
upon request of the Union. 4
On August 13, 1946, the -respondent notified each of the complainants by letter
of Arbitrator Shipman's award, quoting the full text of the award. Upon the
complainants' refusal to comply with the arbitration award, the Union requested
that the respondent terminate their employment. Accordingly, on September 9,
11 Carberry testified as follows in response to a question by Trial Examiner Webb :
Trial Examiner WEBB. Did you at any time prior to or subsequent to that arbi-
trator proceeding agree to abide by the decision of the Arbitrator?
The WITNESS. No, I didn't. In fact, we told the Arbitrator at that hearing that we
would not abide by any decision.
George Barry, attorney for the respondent ; Irene Sullivan , personnel and pay-roll manager
of the respondent ; and Sidney Young, president of Local 109, all of whom were present
throughout the hearing of arbitration proceeding , denied that Carberry there stated that
she would not be bound by the decision of the arbitrator . The transcript of testimony
taken during that hearing contains no such statement on the part of Carberry. The under-
signed therefore does not credit Carberry' s testimony in this regard. As to this issue, the
following colloquy between the Arbitrator and Edward J. Dinkel, counsel for the complain-
ants at the arbitration hearing, is , in the opinion of the undersigned , significant :
The ARBITRATOR. Do [the complainants] understand that if I so find they are mem-
bers of the Union , and they continue to maintain the position that they do not want
to have anything to do with the Union, that they must lose their jobs?
Mr. DINDBL . They so understand. . . .
The ARBITRATOR (addressing Miss Carberry, Miss Whelan and Miss Turner). You
understand that I must take this position. You understand why I must take that
position . As Arbitrator, I am bound by the agreement I cannot change anything
in it.
The agreement says that if you were members on the date of the agreement, you
must continue to be members , subject to discharge at the request of the Union. If I
find that you were members at that time , then the agreement automatically takes effect.
If I find you were not members , you are not subject to discharge at the request of the
Union.
(Miss Carberry, Miss Whelan and Miss Turner, indicated they understood the
position of the Arbitrator) [Parenthetic remarks in original].
PARAMOUNT PICTURES, INC. 571
-1946, the ' respondent notified each of the complainants of lies discharge by the
following letter:
We have received a letter from Ithe Screen Office and Professional Em-
ployees Guild , Local 109, U. O. P. W. A., C. I 0, stating that you have failed
to fulfill the terms of the award of the arbitrator in case No . L-1627 NY-L-
70-46. The Union, therefore , requests your immediate discharge.
Inasmuch as you acknowledge that you have not fulfilled the terms of
the award , it 'is with deep regret that the company notifies you that you are
discharged from its employ as of September 9th, 1946.
No action was taken by the complainants to set aside or modify the award of
.the arbitrator.
B. Conclusions
Initially, counsel for the Board contends that the complainants were never
members of the Union because of the failure of the Union to comply in full, as
to the complainants with the provisions of the constitution and bylaws respecting
the acquisition of membership in the Union. Specifically, he points to the provi-
sions stating that new members should take an oath of allegiance to the Union
and upon acceptance into membership should receive a membership card and
copies; of the,cgn,stittion and bylaws. The undersigned finds no merit in this
contention. On its face, the application blank signed by each complainant stated
that the signer thereby requested and accepted membership in the Union. More-
over, the significant provisions of the constitution and bylaws, in respect to mem-
bership in effect at the time the complainants signed the application blanks, set
forth, as noted previously, two prerequisites to the attainment of membership,
(1) the application should be made in writing and accompanied by payment of
the initiation fee and dues for the first month and (2) the application should
be approved and the dues and fees be accepted by the National Union. In all
respects, these provisions were fulfilled as to the complainants. Although the
constitution and bylaws also stated in other provisions that new members should
swear allegiance to the Union, officers of the Union explained at the hearing that
in many instances this provision was waived because of various circumstances
without affecting the membership standing of employees involved. As to com-
pliance with the incidental provision that a new member upon acceptance to
-membership should receive a membership card and a copy of the constitution
and bylaws, there is a conflict in testimony. The complainants stated that they
never received such documents, whereas officers of the Union testified that union
(records revealed that the names of the complainants had been processed on an
.addressograph-machine'and that following the normal practice, they should have
received by mail membership cards and copies.of the constitution and bylaws.
In any event, the undersigned is of the opinion that the administration of the
membership oath and the receipt of these documents, under the circumstances
of the case, were not the controlling factors in determining union membership.
It is accordingly found that all complainants became members of the Union and
were in good standing therein until they were more than two months in arrears
in the payment of dues.R°
Secondly, counsel for the Board argues that if the complainants became mem-
bers of the Union, they resigned from the Union before the effective date of the
maintenance of membership provision of the contract. That a member of a labor
20 Cf. Matter of Bendir Aviation Corp., 1 L. A. 30; Matter of Johnson Manufacturing
Co., 6 L. A 376
572 DECISIONS OF months prior to May 1945, to
maintain such membership in good standing. Being retroactive in effect for
23 As Arbitrator Shipman pointed out "the only circumstance that could possibly mili-
tate against the Union's disclaimer of notice or knowledge is the rather long period of
time that it permitted to elapse after the employees became delinquent in their dues before
it invoked" the union security provisions of its contiact with the respondent. However,
Sidney Young, president of the Union, testified without contradiction, that because the
negotiations between the Union and the respondent concerning job classifications and
wage increases were prolonged and, in fact, consumed a period of 3 years before they were
ultimately settled , the executive board of the Union agreed not to press members for the
payment of dues until the job classifications and wage increases i;ele achieved According
to Young, the provisions of the constitution and bylaws concerning the payment of dues
in order to maintain membership in good standing were suspended and all members on the
Union's register were permitted to retain the privileges of membership in good standing,
even though they were delinquent in the payment of dues. The undersigned finds that the
lapse of time between the delinquency of the complainants in the payment of their dues
and the invocation by the Union of the union security clause of the contract was justified
because of the circumstances of the case, namely the lengthy negotiations with the re-
spondent, National War Labor Board proceedings , and arbitration proceedings More-
over , such a suspension or waiver of certain provisions of the constitution and bylaws of
a labor organization is by no means unusual under similar circumstances . See Matter of
Merrill-Stevens Dry Dock and Repair Co ., 1 L. A 2T, Matter of Bendi;c Aviation' Corp ,
1 L. A: -3e1; Matter of -Bethlehem-Spiorrows Point Shipyat d, Inc, 6 L A 892 ; Matter of
Johnson Maaafactn'ring Co, 6 L A' 376
11 69 N. L R. B. 589 and 71 N. L. R. B 354.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
81/ months from the execution date, the maintenance of-membership provisions
also, covered a 2-month period during which no contract had been in effect and
during which a question concerning representation existed. The contract in
question thus attempted to disregard any valid resignations which took place at an^
appropriate time following the expiration of the original contract and during,
a time when a question concerning representation existed: The instant, proceed,
ing presents an entirely, different fact situation. . ,, , -
The union security clause of the 1945 contract between the respondent and the
Union, executed on August 6, 1945, starts with the words, "All present employees
now members of the Union." Although by its terms, the contract .was to be
effective from July 28, 1944, to July 27, 1946, no-contention was made that the
union security provisions applied to those who were members of the Union on
July 28, 1944, but not on the execution date of the contract. Indeed, the arbitrator.
stated in his award that the following was the fundamental query : "Were these
employees members of the Union on the Agreement date August 6, 1945?" Thus,
it is clear no retroactive effect was stated or intended and none was given to,
the maintenance of membership provisions of - the, respondent's 1945 contract
with the Union. _ Accordingly, the Colonie Fibre Company case is -inapplicable
to the instant proceeding.
In addition, counsel for the Board contended that the effect, of permitting
the Union, during the terms of its second contract, to insist upon payment of an,
arrearage of dues and assessments accruing during the term of the original
contract is to give the maintenance of membership provision of the second con-
tract retroactive scope. The argument might have merit if the original contract
had not contained the same union security provisions of the second contract.
But where, as here, a contractual relationship between a union and employer
has existed uninterrupted for a period of years, the succeeding contract containing
the same maintenance of membership provisions as the first, there appears to be
no authority holding that upon execution of the second contract, the union is
barred from recovery of unpaid dues and assessments arising during the term,
of the first contract." Indeed, in arbitration, proceedings and in proceedings
before the National War Labor Board, it has frequently been held that during
the term of a second contract, a union may require payment of dues accrued and
delinquent under the terms of an earlier contract 2'
An additional contention of counsel for the Board is that the union security
provisions of the contract should be interpreted to mean that only those em-
ployees who were members in good standing of the Union on the date of the exe-
cution of the contract should as a condition of employment be required, to main-
tain their membership in good standing in the Union for the term of the contract.
25 In connection with this phase of his argument, counsel for the Board apparently relied
upon Matter of Aluminum Company of America, Lafayette Works, 68 N. L R. B. 750 and
Matter of Phelps Dodge Copper Products Corporation, 63 N. L. R. B 686. Neither of
these cases applies to the instant proceeding. In both, union security provisions of,a con-
tract were invoked and employees were discharged pursuant thereto at a time after the
contract had expired and when no contract was in effect. Heie, the maintenance of
membership provisions have been continuously and uninterruptedly in effect since the
execution of the first contract between the respondent and the Union on May 10, 1943.
22 See Matter of United Shoe Machinery Corp., 1,L. A 240; Matter of Paramount Pic-
tures Inc., 6 L. A. 672; Matter of Bethlehem-Sparrows Point Shipyard, Inc., 6 L. A. 892;
Matter of Bethlehem Steel Co., 12 W. L R. 255: Matter of Cincinnati Industries, Inc., 12
W. L. R 516: Matter of Consolidated Steel, 20 W. L R 110; Matter of Ingalls Iron
Works Co., Inc., 21 W. L. R. 27 ; Matter of Lamson & Sessions Co., 22 W. L. R. 459 ; Matter
of General Motors Corp ., 23 W. L R . 69 , , - _
PARAMOUNT PICTURES, INC. 575
The undersigned cannot agree. In the absence of any ambiguity in the contract
or conflict in meaning of various provisions thereof, as well as the absence of any
evidence showing that the contract terms did not reflect the intent of the parties,
the contract must be taken at its face value and applied without revision or
interpretation which would change the plain language of the contract. The
union security provision of the contract commences, "All present employees now
members of the Union . . ." and obviously covers members in bad standing
as well as those in good standing. In view of all the circumstances, the careful
distinction in the use of the terms "members" and "members in good standing"
in the contract, and the fact that such a union security provision is by no means
unique, it must be found that the parties intended to cover such situations as
have given rise to the instant proceeding. The undersigned finds that the con-
tract applies to members of the Union whether in good or bad standing on
August 6, 1945.
Counsel for the Board points to the provisions of the bylaws of Local 1,
signatory to the 1945 contract, providing that if a member is delinquent in the
payment of his dues more than 1 month, he "shall automatically be suspended
and shall lose the privileges of Union membership." 27 Counsel argues that, by
virtue of this provision, the complainants have long since lost their membership
in the Union because of their failure to pay dues. The fallacy of the argument
lies in its failure to distinguish between suspension of membership privileges
and expulsion from membership, a distinction which the language of the bylaws
does not always make clear, but which in each of the Union's successive consti-
tutions is unmistakably preserved. A member was expelled only after trial be-
fore a special board. Failure to pay dues resulted in suspension of membership
privileges, according to the terms of the constitution and bylaws, but did not of
itself sever the affiliation of the member with the Union. Though in bad stand-
ing, he was nevertheless a member.28 Moreover, as found in the margin above.
the executive board of the Union had agreed not to enforce these provisions
of the constitution and bylaws, pending ultimate settlement of the wage and job
classification issues.
The undersigned concludes and finds that the complainants became members
in good standing of the Union, never resigned their membership in the Union, and
at the date of the execution of the contract on August 6, 1945, were members of
the Union in bad standing because of non-payment of dues and assessments but
nevertheless were subject to the union security provisions of the contract.
There remains for consideration the argument made by counsel for the re-
spondent in reliance on the Timken Roller Bearing case,29 that even if it should
be found that the award of the arbitrator was erroneous, that the complainants
were not subject to the union security provisions of the 1945 contract, and that
they therefore should not have been discharged, nevertheless the complaint
should be dismissed since it would not effectuate the policies of the Act to permit
the complainants to seek redress from the Board after having participated in
the arbitration proceeding In support of his contentions, counsel also refers to
Matter of Baker ,& Company, Inc., 68 N. L. R. B. 83Q, which involved issues simi-
lar to those of the instant proceeding, namel.\, whether union security provisions
"Bylaws of Local 109 provided, "A member who is in arrears of 2 months' dues or
more shall automatically be suspended and shall lose the privileges of voting and partici-
pating in membership meetings."
28 See Matter of Lamm Lumber Co., 14 W. L. R. 396. •• _ ,
29 Matter of Timken Roller Bearing Company, 70 N. L. R. B. 500.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a contract were actually applicable to employees discharged by the employer
upon request of the union involved. Therein the Board stated that the employer
had a duty to inquire as to the identity of employees covered by the mainte-
nance-of-membership provision and "when it failed to perform that duty and
discharged the four employees . . , it acted at its peril and violated
Section 8 (3) of the Act when the true facts were, as herein found, that the con-
tract did not require their discharge" The respondent contends that since the
complainants were discharged pursuant to a valid contract only after the
respondent had made its own independent investigation and an arbitrator had
issued an award determining the issue, the respondent has fulfilled its duties
under the Act and has not discriminated against the complainants.
In a sense, the complainants are not in the same status as the charging union
in the Tiaaken Roller Bearing case. There, arbitration proceedings had been had
at the insistence of the Union, and failing to receive an award favorable to it,
the Union filed with the Board charLes of unfair labor practices covering the
issues of the arbitration proceeding In the instant proceeding, the complainants
were intervenors in the arbitration proceeding which was invoked by agreement
of the Union and the respondent. However, there intervention in that pro-
ceeding was voluntary and, as previously noted, the colloquy between the arbitra-
tor the complainants, and their counsel in such proceeding indicated that the com-
plainants agreed to abide by the results of the arbitrator's award. In any event,
they took no action under the laws of the State of New York to have the ruling
of the arbitrator reviewed or set aside Although the position of the com-
plainants herein and the union ill the 1'nitken Roller Bern mg case are technically
not identical, nevertheless in reality they are, for, in the language of the Board
in the latter case, they have "concurrently utilized two forums for the purpose
of litigating the matter here in dispute." Therefore, the sane considerations
which motivated the Board to dismiss that portion of the complaint referring
to the arbitrated issues in the Trneken Roller Bearing case are applicable here.
To do so would not only reduce litigation but would effectuate the fundamental
policies of the Act. Especially is this true ill the instant case where there is
-no evidence of bad faith or anti-union conduct on the pact of the respondent, the
-issue of dual unionism is not involved, the problems of the case are particularly
-avell suited to resolution by arbitration. and the award of the arbitrator is in
accord with the established line of authorities in comparable proceedings in-
volving similar issues. In view of all these consideiations, the undersigned is
of the opinion that even if it should be assumed that the complainants were
not subject to the union security provisions of the contract between the Union
and the respondent, the complaint should be dismissed in order to effectuate the
policies of the Act 30
Upon the entire record in the case, the undersigned is convinced, and finds,
that the respondent did not violate the Act as alleged in the complaint. Accord-
ingly, the undersigned will recommend that the complaint be dismissed in its
entirety.
Upon the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
30 In so finding , the undeisigned does not mean to imply that the arbitration proceeding
bars the Board from assuming jurisdiction As in all unfair labor practice proceedings,
the instant one is concerned not with private rights but rather with the enforcement of
a public policy over which the Board has jurisdiction not "affected by any other means
of adjustment " See Matter of Rieke Metal Products Corporation, 40 N. L R B. 8f7,
PARAMOUNT PICTURES, INC.
CONCLUSIONS OF LAw
577
1. The operations of the respondent, Paramount Pictures, Inc., New York
City, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act.
2. Screen, Office and Professional Employees Guild, Locals 1 and 109, United
-Office and Professional Workers of America, C. I. 0., are labor organizations,
within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices as alleged in
the complaint, within the-meaning of Section 8 (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, 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, Rochambeau Building, Washington 25, D. C., an original and six.
,copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
tile an original and six copies of a brief in support of the Intermediate Report.
Immediately 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.
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 permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days-
from the date of service of the order transferring the case to the Board.
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 and exceptions thereto shall be deemed waived for all
purposes.
FREDERIC B. PARRIES, 2ND,
Trial Ewaminer.
Dated October 10, 1947.