Pittsburgh Plate Glass Co.

National Labor Relations Board - Board Decisions

Mar 25, 1946

66 N.L.R.B. 1083 (N.L.R.B. 1946)

In the Matter of PITTSBURGH PLATE GLASS COMPANY (COLUMBIA
CHEMICAL DIVISION) and INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, WELDERS AND HELPERS OF AMERICA
(AFL)
Case No. 8-C-1720.-Decided March 25, 1946
Mr. Thomas E. Shroyer, for the Board.
Messrs. Leland Hazard and H. W. Hawes, of Pittsburgh , Pa., for
the respondent.
Mr. Edward Piech, of Cleveland , Ohio, for the A. F. L.
Mr. Stanley Denlinger, of Akron, Ohio, for the U. M. W.
Mr. W. T. Lewis, of Columbus, Ohio, for the C. I. O.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge filed by International Brotherhood of Boilermakers,
Iron Ship Builders, Welders and Helpers of America (AFL), herein
called the A. F. L., the National Labor Relations Board, herein called
the Board, by the Regional Director of the Eighth Region (Cleveland,
Ohio), issued its complaint, dated January 2, 1945, against Pittsburgh
Plate Glass Company (Columbia Chemical Division), Barberton,
Ohio, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section 2
(fi) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint accompanied by notice of
hearing thereon were duly served upon the respondent and the
A. F. L.1
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent : (1) on or about November 11, 1944,
discharged or laid off George Matuch, Joseph Konich, William Deans,
1 Also upon the U. M. W, but "not as a formal party."
66 N. L. R. B., No. 134.
1083
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Joseph Scanlon because they were members of and active on be-
half of the A. F. L. and non-members of Local Union #13013 of the
Gas, By-Product Coke and Chemical Workers, District 50, United
Mine Workers of America, herein called the U. M. IV.; (2) since about
October 1, 1944, urged, persuaded, and warned its employees to join
the U. M. W. and threatened to discharge them for non-membership
therein; and (3) thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.2
On January 18, 1945, counsel for the U. M. W. having theretofore
filed a written motion to intervene, the Regional Director issued an
order allowing the U. M. W. to intervene in the proceeding "as its
interests may appear or the Trial Examiner may grant." On Janu-
ary 26, counsel for the respondent filed a written motion with the
Board to transfer the case to the Board and to dismiss the complaint
on the ground that the proceeding contravened provisions of the
National Labor Relations Board Appropriation Act, 1945. On Janu-
ary 29, the Board issued an order denying the motion. On February 2,
counsel for the respondent having theretofore filed a written motion
for certain subpenas, the Regional Director issued an order allowing
the motion in part.
Pursuant to notice, a hearing was held at Akron, Ohio, on February
6, 7, and 8, and at Pittsburgh, Pennsylvania, on February 23 and 24,
1945, before Josef L. Hektoen, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the respondent, the U. M.
W., and Federation of Glass, Ceramic and Silica Sand Workers of
America, CIO, herein called the C. I. 0.,3 were represented by counsel
and the A. F. L. by a representative; all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. At the opening of the hearing, counsel for the respondent
filed a written motion to dismiss the complaint "by virtue of National
Labor Relations Board Appropriation Act, 1945" and an offer of
proof in support thereof; the motion was denied by the Trial Exam-
iner on the basis of the Board's order of January 29. At the close of
the Board's case on February 6, counsel for the U. M. W. moved to
dismiss the complaint for failure of proof ; the motion was denied.
On February 7, counsel for the U. M. W. reiterated his motion to
dismiss the complaint and counsel for the respondent moved to dis-
miss for failure or proof and because of contravention of the Appro-
t The respondent filed no written answer but denied upon the record the commission of
any unfair labor practices
' On the first day of the hearing , counsel for the C. I. O. Sled a written motion to
intervene. It was allowed by the Trial Examiner on that day.
PITTSBURGH PLATE GLASS COMPANY 108S
priation Act of 1945 4 Ruling on the motion was reserved and was
denied by the Trial Examiner in his Intermediate Report .-' At the
close of the hearing, the motion of counsel for the Board to conform
the complaint to the proof in formal matters was allowed without
objection.
On July 30, 1945, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon the respondent and the
participating unions . He found that the respondent had engaged in
and was engaging in certain unfair labor practices affecting com-
merce, within the meaning of Section 8 ( 1) and ( 3) of the Act, and
recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. There-
after, the respondent filed exceptions to the Intermediate Report and
a supporting brief. The charging union , herein called the A. F. L.,
filed a brief in support of the Intermediate Report.
On November 26, 1945, the respondent filed a motion to supplement
the record by the incorporation therein of two documents ; each dated
November 6, 1945, entitled "Supplemental Agreement Concerning the
Cooperation Clause," and "Joint Interpretation of the Supplemental
' The pertinent language of the Appropriation Act follows.
No part of the funds appropriated in this title shall be used in any way in connec-
tion with a complaint case arising over an agreement , or a renewal thereof , between
management and labor which has been in existence for three months or longer with-
out complaint being filed by an employee or employees of such plant ; Provided,
That , hereafter , notice of such agreement , or renewal thereof, shall have been posted
in the plant affected for said period of three months, said notice containing informa-
tion as to the location at an accessible place of such agreement where said agree-
ment shall be open for inspection by any interested person. * * *
& The employees alleged to have been discriminated against were laid off pursuant to a
practice followed by the respondent and the U. M. W. allegedly based upon the provisions
of a contract between them executed May 11, 1944 , and dated April 9, 1944.
A charge was filed more than 3 months after the date of the execution of the contract,
not by an employee of the respondent No notice respecting the contract was ever posted
in the plant . Plant Manager Robert L. Hutchison testified that on June 29 or 30, 1944,
he distributed copies of the contract to all employees in the plant with their pay checks.
The respondent thereafter maintained a replenished supply of such copies on a shelf near
the time clocks in the plant which was "reserved for material of importance to all hourly
employees" and where new employees were told " they receive all material of that type."
Inasmuch as we hereinafter find that the respondent did not at any time prior to No-
vember 1945 , enter into an agreement requiring membership in the U. M. W. as a condi-
tion of employment and hence that the respondent 's 1944 contract did not justify the
conduct alleged in the complaint as unfair labor practices , we find that this case did not
arise over an agreement within the meaning of the Appropriation Act, and that the limi-
tation contained in that Act is, therefore , not applicable to this case.
The Trial Examiner erroneously assumed that the proceeding did arise over a contract,
and that , although no notice respecting the contract was ever posted in the plant, the
statutory requirement of notice was met in that the employees received actual notice of
the contract through distribution thereof. He concluded , nevertheless , and we agree,
that inasmuch as the respondent did not begin publicizing the contract until more than a
month after it was executed , the posting requirement of the Appropriation Act had not
been satisfied because it requires that notice shall be posted for the 3-month period next
succeeding the execution of the contract. See the opinion of the Comptroller General of
the United States, dated March 14, 1945, No. b-47778.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreement Concerning the Cooperation Clause," respectively s The
A. F. L. objected to the Board's consideration of these documents in
its decision, on the ground that they were not executed until after
the events alleged in the complaint as unfair labor practices had taken
place. The A. F. L. agreed, however, that the documents offered are
what they purport on their faces to be, and did not object to the
Board's admitting them into the record to be considered by the Board
in determining the remedy herein. While we agree with the conten-
tion of the A. F. L. that these documents have no bearing on the
issue of whether the respondent violated the Act, we nevertheless
believe that it is desirable that the record contain an accurate picture
of the clause which appears in the contract today. For this limited
purpose, we hereby grant the respondent's motion and incorporate
the documents into the record.
On January 29, 1946, the Board at Washington, D. C., heard oral
argument , in which the respondent, the A. F. L., and the C. I. O. par-
ticipated.
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 Inter-
mediate Report, the exceptions and briefs, the contentions advanced
by the parties at the oral argument, and the entire record in the case
and finds that the exceptions are without merit insofar as they are
inconsistent with the findings of fact, conclusions of law, and order
set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Pittsburgh Plate Glass Company, is a Pennsyl-
vania corporation having its principal office at Pittsburgh, Pennsyl-
vania. It owns and operates some 20 plants located in 15 States.
Its principal products are flat, plate, window, and safety glass , paints,
brushes, heavy chemicals, and cement. The plant at Barberton,
Ohio, the only one involved in this proceeding, known as the Colum-
bia Chemical Division, is engaged in the production and sale of
heavy chemicals. It annually buys materials from points outside the
State of Ohio valued at approximately 1 million dollars and annually
The "Supplemental Agreement Concerning the Cooperation Clause," herein called the
Supplemental Agreement , purports to be a supplement to the contract between the re-
spondent and the U. M. W., dated April 9, 1944, more fully referred to hereinafter. In
the Supplemental Agreement the respondent undertakes , in substance, to require em-
ployees to join the U. M. W. and maintain membership in the U. M. W. by payment of
dues upon pain of dismissal at the expiration of certain grace periods.
PITTSBURGH PLATE GLASS COMPANY 1087
sells finished products to points outside the State of Ohio valued at
at least 1 million dollars.
The respondent admits that it is engaged in commerce , within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders,
Welders and Helpers of America (AFL) ; Local Union #13013 of
the Gas, By-Product Coke and Chemical Workers, District 50, United
Mine Workers of America; and Federation of Glass, Ceramic and
Silica Sand Workers of America, CIO, are labor organizations admit-
ting to membership employees of the respondent.7
III. THE UNFAIR LABOR PRACTICES
A. Background; the respondent's recent labor relations history
In 1936, the C. I. O. which was and is the bargaining agent of the
production employees of the respondent's glass plants," conducted a
strike for a closed shop, check-off of dues, a seniority policy, and
increased wages. The strike terminated in 1937, the respondent
granting the workers of the glass plants an increase in wages and
"straight" seniority.
Prior to 1940, the respondent, by urging its employees to become
and remain members of the C. 1. 0., began a "practice of cooperation"
with the C. I. O. to the end that it might maintain a substantially 100
percent dues-paying membership.
In 1940, the C. 1. 0. picketed two of the respondent's plants in Ford
City, Pennsylvania; the action resulted in substantially 100 percent
membership of their employees in the C. I. O. In the same year the
"practice of cooperation" was extended by the respondent to the
U. M. W., representative of its employees of Barberton.
In 1941, the C. I. O. demanded that the respondent agree to a union
shop and check-off of dues. A compromise was arrived at whereby
the respondent agreed to insert in the written contract between the
parties the following clause:
The Company agrees to continue the present practice of cooper-
ating with the Union to the best interests of all parties.
This clause was also included in the respondent's 1941 contracts with
the U. M. W. at Barberton and with the A. F. L. at other plants. It
7 So far as is revealed by the record , the C . I O. has no members at the Columbia
Chemical Division plant of the respondent . It has extensive membership among the em-
plovees of the respondent 's plants elsewhere , however.
8 The A. F. L represents the cutters in the glass plants.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has since appeared in the contracts annually entered into by the
respondent with the three labor organizations .9
In 1942, as the result of the decision by the Supreme Court 10 that
a company-wide unit of glass workers was appropriate for purposes
of collective bargaining, the respondent's Crystal City, Missouri, plant
came under the terms of the agreement with the C. I. 0.
Some 10,000 employees of the respondent, including about 1,300
at the Barberton plant, are affected by the contracts at the time of
the hearing.
B. The cooperation clause in practice
1. At other plants
The respondent was and is opposed to the closed shop and auto-
matic collection of dues but believes that substantially 100 percent
membership in any labor organization representing its employees is
beneficial to efficiency of operation and that in order to maintain such
membership, the representative should first be required to use its own
best efforts to attain that end and that by being caused to do so, the
representative is kept supple, dynamic, and in close and salutary
touch with its members. The respondent's belief applies to dues col-
lections as well.
When the respondent is satisfied that the employee representative
has used its best efforts to attain the desired goal, it will undertake
to lend its assistance in the matter of convincing recalcitrant employ-
ees that they should comply with its policy that their representative
maintain substantially 100 percent membership among them. The
extent and method of cooperation by the respondent varies from plant
to plant.
At the Creighton, Pennsylvania, plant, the management requests
new employees to join the C. I. 0. within 60 days. Upon being fur-
nished lists of non-members or dues delinquents by the Union, the
respondent, assuming that it has exerted the required effort, delegates
its foremen to speak to the individuals involved. Threats of discipli-
nary action have been sufficient to achieve employee conformity to the
respondent's policy.
At Ford City, Pennsylvania, new employees are asked to "go along
with the employees" and join the C. I. 0. When notified of recalci-
trants by the union, supervisors successively ask them over a 3 pay-clay
period to join the union or pay up their dues. Three employees have
been discharged for non-membership, and one for failure to pay his
dues.
6 The same provision also appears in the contract between the C. I. 0. and the Libbey-
Owens-Ford Glass Company, covering some 7,200 hourly paid workers
10 Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146.
PITTSBURGH PLATE GLASS COMPANY 1089
At Crystal City, Missouri, new employees are told that the C. I. O.
represents the workers. The Union thereafter monthly notifies the
respondent of delinquencies and management speaks to such employ-
ees asking them to conform. If they are reported again the following
month, the respondent sets a deadline for payment of back dues after
the next pay day."
At plenryetta, Oklahoma, only one employee has been reported to
the respondent for delinquency. He was laid off but returned to work
after 36 hours, having paid up his dues. New employees are not in-
formed of the agreement with the C. I. O.
At Mount Vernon, Ohio, when the respondent is "satisfied that
sufficient effort has been made" by the C. I. 0.,12 recalcitrant employ-
ees are told to make their "peace with the union" within 48 hours. Six
cases of dues delinquency and one of non-nlenibership have been re-
ported. One such employee quit rather than conform. New employees
are not informed of "conditions" obtaining at the plant unless they
request explanation thereof.
At Clarksburg, West Virginia, the management speaks to non-con-
formists upon notice from the C. I. O. No lay-offs have been necessary
to bring them into line. The respondent occasionally advances slues
of money to delinquents in order to enable them to return to good
standing in the Union so far as dues are concerned. New employees
are told that the respondent expects them to join the C. I. O. and if
they object to doing so, it is suggested that they seek employment
elsewhere. -
At the cement plant in Zanesville, Ohio, the respondent is under
contract with the A. F. L. Upon notification by that union, non-
members and dues delinquents are asked by the management to join
it and pay up. Six employees, five of whom complied and one of
whom quit, have been so approached. New employees are told that
the A. F. L. represents the employees and are requested by the re-
spondent to join it.
2. At Barberton
Finally, at Barberton , applicants for employment are told that they
will be expected to join the F. M. W. and will not be hired if they
state that they will not join. New employees are given copies of the
contract and the U. M. W. is thereafter expected to use its best efforts
to cause them to become and remain dues-paying members. After
i In 1942 about 79 employees were laid off for failure to join the C 1 0 About 50
have since returned to work and become members thereof. Charges (Case No. 14-C-723)
were thereafter filed against the respondent alleging the lay-offs to have been discrimina-
tory The Regional Director at St. Louis refused to issue a complaint, however
12 John A. Watt, superintendent, testified that the adequac v of such effort "Is something,
that I would have to judge for myself I don't think you set up any standards,"
686572--4f3-7l,
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having done so,13 it reports recalcitrants to the respondent by means
of monthly written lists.14 The respondent thereupon embarks upon
a series of interviews with such employees, points out that their fail-
ure to conform may result in disharmony, consequent inefficiency in
the plant, and diminished production, and finally delivers an ulti-
matum to the effect that failure to conform will' result in disciplinary
lay-offs of indefinite duration beginning on definite dates.' From
April 12 to December 27, 1944, the U. M. W. reported names of dues
delinquents requiring 45 typewritten pages to list and from April
1944 through January 1945, names of non-members covering 25 pages.
From April 9, 1944, the date of the current contract, to the time of
the hearing, 6 employees, including the 4 alleged in this case to have
been discriminated against, were laid off for non-membership 15 and
64 for dues delinquency.16 The length of lay-off is discretionary with
the respondent. The penalty of discharge has not hitherto been in-
voked at Barberton. Plant Manager Hutchison testified that he is
prepared to invoke it should the occasion arise. Probationary em-
ployees are exempt from the operation of the agreement for the 50-
day period of their probation and part-time employees are not
affected. The practice covers only membership and dues payments;
the collection of union fines and the like does not concern the respond-
ent. From time to time "exceptions" may occur. Examples thereof
are the cases of those here alleged to have been discriminated against
and respecting whom the facts are set forth infra. Neither the U. M.
W. nor the respondent objects to dual unionism.
C. The lay offs at Barberton
Deans, Konich , Matuch, and Scanlon were laid off by the respond-
ent on November 11, 1944, for failure to become members of the
U. M. W. The first three returned to work on December 6. Scanlon,
so far as is disclosed by the record, either retired or quit in the interim
and was in California "for his health" at the time of the hearing.
Deans was 63 years old , had worked for the respondent as a boiler-
maker for 23 years , and had been a member of the A. F. L. for 44
years. Konich was 57, had worked for the respondent 27 years. and
had been an A. F. L. member for 10. Matuch had been an A. F. L.
member since 1906 and had worked for the respondent for 13 years.
Scanlon, although the record does not disclose the details of his status,
was also a long-time employee and A. F. L. member.
13 No criterion of what such effort entails appears in the record.
14 This practice began in April 1944. Before that time, oral reports were from time to
time made by the Union
$ Only one, Joseph Scanlon. was not working In the plant at the time of the hearing
16 All eventually paid up their dues and had returned to work at the time of the
hearing.
PITTSBURGH PLATE GLASS COMPANY 1091
The four employees were periodically reported to the respondent
by the U. M. W. for non-membership beginning in 1941. In 1942,
at the U. M. W.'s invitation, they had attended a meeting of its execu-
tive board. They there stated that they declined to join that union on
account of their apprehension that by doing so they might lose their
A. F. L. insurance benefits. In 1943, the National War Labor Board
had occasion to consider the contract between the respondent and the
U. M. W. The latter requested a union shop and check-off of dues
but "traded" such demand for the respondent's undertaking to
render it greater aid in achieving 100 percent dues-paying member-
ship among the employees.
On November 2 and 9, 1944, Alvin Sherrill, personnel director of
the Barberton plant, called the four to his office. On both occasions
lie asked them to join the U. M. IV. and on the second, informed
them that if they did not, he would "pull" their time cards. They
(lid not join and ceased work on November 11. On November 18,
the respondent replaced their cards in the rack and Matucli worked
on that day but was advised by the A. F. L. to stay out of the plant
until the matter was "settled." The others did not report and there
is no evidence that the respondent directly informed any of them
that they could return on November 18. On November 30, Sherrill
invited Konich to return to work and on December 1, Deans and
Matuch. Sherrill testified, and we find, that but for Scanlon's deci-
sion to go to California, he would also have been invited to return.
The three returned on December 6,17 and were working in the plant
at the time of the hearing. They had not joined the U. Al. W. and
were again being periodically reported to the respondent for non-
membership by that organization.
The record reveals that while the A. F. L. formerly represented
a substantial number of the employees at the plant, it had not sought
to bargain for its members there for some years. There is no evidence
that the employees laid off would have lost their insurance benefits
in the A. F. L. had they joined the U. M. W. They testified that
while they were satisfied with their representation as employees
through the U. M. IV., they did not want to join it because of the
additional dues burden incident to membership in two labor organiza-
tions.
The respondent, the A. F. L., and counsel for the Board stipu-
lated, and counsel for the U. Al. W. agreed, that the facts with respect
to the employees' ages, their long-time service, Deans' parlous health
and eligibility for early retirement, as well as the fact that they
were needed at the plant in the face of the prevailing manpower
shortage, were taken into consideration by the respondent and the
17 Their delay was occasioned by orders from the A. F. L.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. M. W. and created a special situation constituting an "exception"
to the normal practice under the contract.
D. Concluding findings
The respondent argues that in the absence of a contest respecting
representation it may insist that employees join a labor organization.
The Act forbids discrimination to "encourage or discourage" member-
ship in a union. The meaning of the words is plain . There is nothing
in the Act to indicate that the prohibition applies only in the event
that a union contest is in existence. The Board has held that dis-
charges to favor a union when there is no contest , are illegal.i$ The
findings made above do not require further discussion; it is plain
that the respondent has encouraged membership in the U. M. W.
We therefore reject the respondent's contention.
The respondent further contends that it is nevertheless protected
because the contract falls within the terms of the proviso to Section
8 (3) of the Act.1' The proviso excepts specifically from the pro-
hibition against "discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment to encourage or
discourage membership in any labor organization" such encourage-
ment or discouragement under a contract with a legally recognized
labor organization which requires as a condition of employment
membership in such labor organization.
We do not regard as controlling, testimony of management and
U. M. W. representatives to the effect that in their opinion the re-
spondent was bound to require membership in the U. M. W. as a
condition of employment or that the respondent would accede to
such a demand if the U. M. W. insisted on it. The record does not
establish that the respondent agreed to bind itself to require member-
ship in the U. M. W. as a condition of employment.20 Moreover.
during the administration of the contract at the Barberton plant,
no instance occurred in which the contracting parties were in dispute
as to the extent of the respondent's obligation in this regard, and
1s Matter of Borg-Warner Corporation (Warner Gear Division), 44 N. L. R. B 105;
see also N . L R B. v. Electric Vacuum Cleaner Company, Inc, 315 U. S. 685.
19 "Provided, That nothing in this Act * * ' shall preclude an employer from mak-
ing an agreement with a labor organization ( not established, maintained , or assisted by
any action defined in this Act as an unfair labor practice ) to require as a condition of
employment membership therein, if such labor organization is the representative of the
employees as provided in Section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made "
20 Robert L Hutchison , the respondent 's plant manager at Barberton , testified :
The agreement we reached was to see that all members of the union stayed in good
standing and paid their dues. Further , we agreed that as long as the union main-
tained a majority of the employees, voluntary members of the union, that we would
talk to the small minority and assist the union in maintaining a 100 percent mem-
bership.
PITTSBURGH PLATE GLASS COMPANY 1093
consequently the respondent's conduct in urging, persuading, and
warning employees to join the U. M. W. or in threatening them with
discharge for non-membership therein, indicates no more than that
the respondent thus desired to "cooperate" with the U. M. W. Indeed,
according to testimony of U. M. W. officials, which we credit, the
U. M. W. had since 1941 repeatedly reported to the respondent that
Matuch, Scanlon, Deans, and Konich refused to join the U. M. IV.
and had requested the respondent to take action to require their
membership in the U. M. W. The respondent, nevertheless, allowed
the four non-member employees to work for it for more than 3 years
after it had agreed to "cooperate" with the U. M. W., before it took
any step to force them to join the U. M. IV. After a short disci-
plinary lay-off in 1944, the respondent reinstated three of the four
employees, although they persisted in their refusal to join the
U. M. W. Thereafter, the U. M. W. continued unsuccessfully to
insist that the respondent force the three reinstated employees to
become members of the U. Al. «'. We do not believe that the re-
spondent's treatment of Deans, Konich, Matuch, and Scanlon is con-
sonant with an obligation on its part to require of its employees
membership in the U. M. W. Under the circumstances we find, as
did the Trial Examiner, that the respondent retained unto itself
under the contract virtually unlimited discretion as to whether to
require dues-paying membership in the U. M. W. in any specific
instance.
Counsel for the respondent stated at the hearing before the Trial
Examiner that the respondent believes "in unionism so long as there
is complete democracy involved in the unionism * * we don't
believe in a union which becomes divorced from its membership * *
(nor] in a union leadership that has no contact with its membership"
and explained with respect to the cooperation plan, "We think there
is value in that initial contact between the Union representatives and
the new employee * * * and the old employee who has been hold-
ing out for one reason or another for years. We think that that
sort of grass roots relationship * * * is the best guarantee of a
well managed, responsible union." He further enunciated the re-
spondent's belief that "the union leadership should be constantly
on trial; that it should have to have contact with its membership;
that it should have to justify itself from year to year. And any time
that leadership can't gain and hold the voluntary adherence of the
big majority of the employees in the unit, then, we should not be
obligated to carry out our part of this form of union security," and
he characterized the plan as "this broad, treaty-like understanding
which gives us the leeway, the flexibility and the latitude to have thiq
kind of unionism in the plant."
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without regard to any merits the plan may have, it is plain, and
we find that it is uncertain in operation, subject to the caprice of the
respondent, and quite apparently not the type of arrangement con-
templated by the Congress and specified in the proviso.21 Although
the proviso to Section 8 (3) may be satisfied by a contract, written or
oral, which exempts certain classes of employees from the require-
ment of union membership, the proviso affords no protection to an
arrangement in which an employer may at will discriminate in favor
of or against any employee with respect to the requirement of union
membership. An employer, however excellent its motives, may not
refuse to execute the sort of agreement contemplated by the proviso
and later invoke the proviso as a defense to a discharge made under a
different agreement.
It would appear, however, that the respondent's conduct in this
case would have been justified if it had taken such action pursuant
to the Supplemental Agreement dated November 6, 1945, inasmuch
as in that agreement the respondent apparently bound itself to require
membership in the U. M. W. as a condition of employment. That
agreement considerably cuts down the area of the respondent's dis-
cretion by defining specific steps of action to be taken by the respond-
ent at specified time intervals, the steps graduating from a "firm
request" by a representative of the respondent that the recalcitrant
employee put himself in good standing with the union, to final dis-
charge of the employee for having failed to do so. Although the
written joint interpretation of the Supplemental Agreement recog-
nizes unusual circumstances which give rise to "exceptions" to the
strict application of the procedures outlined in the Supplemental
Agreement, the policy of making exceptions to alleviate unusual
circumstances is made subordinate to "the agreed objective of the
cooperation clause; namely, 100% regular dues-paying Union mem-
bership in the established collective bargaining unit."
However, inasmuch as the cooperation plan lacked certainty of
obligation, and therefore did not come within the protection of the
proviso at the time disciplinary lay-off was applied thereunder to the
four employees herein involved, it follows and we find that the re-
spondent has discriminated against them regarding the hire and
tenure of their employment, thus encouraging membership in the
U. M. W. in contravention of Section 8 (3) of the Act and has there-
21 We perceive no merit in the argument of our colleague , Mr Houston, dissenting here-
in, that the cooperation plan should be protected because it has resulted in stable and
harmonious relationship between the respondent and the U . M. W. We have never
recognized stability and harmony of relationship between respondent and union as a
defense to a violation of the Act ; the factor is ever present in cases concerning domi-
nated or assisted unions. Moreover , the fact that this case reached the Board is an
indication that the relationship is not so harmonious as the parties contend, that perhaps
more harmony would be attained if the contract under which stable harmonious relation-
ship was attempted met the requirements of the proviso as interpreted in this decision
PITTSBURGH PLATE GLASS COMPANY 1 095
by, and by urging, persuading, and warning its employees to join
the U. M. W. and threatening them with and applying discipline for
non-membership therein and for failure to pay dues thereto, interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act .22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent found to be unfair labor practices
and set forth in Section III, above, occurring in connection with the
operations of the respondent set forth in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the respondent has engaged in and is engag-
ing in certain unfair labor practices . We shall order that it cease
and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the respondent has discriminated in regard to
the hire and tenure of employment of William Deans, Joseph Konich,
George Matuch , and Joseph Scanlon , we shall order that the respond-
ent offer to Joseph Scanlon immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges .23 The others have already
been reinstated.
In view of the action of the Regional Director at St. Louis in
refusing to issue a complaint respecting the lay-offs of the respond-
ent's employees at its Crystal City plant, and on the entire record,
we do not consider that it would effectuate the policies of the Act
to order the respondent to reimburse the employees involved in the
instant proceeding for any pay they may have lost by reason of
its action with respect to them.24
Normally, in cases in which an employer has unlawfully encouraged
membership in a union and has unlawfully discriminated against
n The respondent contends that its action with reference to the employees involved
does not constitute a violation of Section 8 (1) of the Act . We find this contention to
be without merit.
" There is no showing in the record that Scanlon decided to remove to California prior
to his lay-off. Had he not been laid off, it is possible that he would not have gone and
instead would be at work for the respondent . Because of these circumstances, and in
order to effectuate the purposes of the Act, we deem it appropriate that the respondent
offer him reinstatement.
26 See Matter of M. and M. Wood Working Company, 6 N. L. R. B. 372; Matter of
Smith Wood Products, Inc, 7 N. L. R. B 950; Matter of McKesson & Robbins. Inc., 19
N. L. It. B . 778 ; Matter of Golden Turkey Mining Co , 34 N L. R B. 760.
1096 DECISIONS OF NATIONAL LABOIL RELATIONS BOARD
employees by lay-off, in addition to affirmative relief, we order the
employer to cease and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act. However, in the
instant case, the respondent acted as it did because it believed in
good faith, though mistakenly, that the,contract, under which it
acted, afforded it protection under the proviso to Section 8 (3) of
the Act. Under the circumstances and, in view of the absence of any
evidence that danger of other unfair labor practices is to be antici-
pated from the respondent's conduct in the past, or that the respond-
ent is opposed to the self-organization of its employees, generally,
we shall merely enjoin the respondent from engaging in the conduct
found to be violative of the Act.25
Nothing in our order hereinafter set forth shall be taken to pro-
scribe conduct of the respondent protected by the proviso to Section
8 (3) of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS or L_4w
1. International Brotherhood of Boilermakers, Iron Ship Builders,
Welders and Helpers of America (AFL) ; Local Union .#13013 of
the Gas, By-Product Coke and Chemical Workers, District 50, United
Mine Workers of America; and Federation of Glass, Ceramic and
Silica Sand Workers of America, CIO, are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Williams Deans, Joseph Konich, George Matuch, and Joseph
Scanlon, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondent, Pittsburgh Plate
z See N. L It B. v Express Publashtnu Company, 312 U. S 426; May Department
Stores N. L R. B, 326 I 8 376.
PITTSBURGH PLATE GLASS COMPANY 1097
Glass Company (Columbia Chemical Division). Barberton, Ohio,,
:uxl its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in Local Union #13013, of the Gas,
By-Product Coke and Chemical Workers, District 50, United Mine
Workers of America or any other labor organization of its employees,
or discouraging membership in International Brotherhood of Boiler-
makers, Iron Ship Builders, Welders, and Helpers of America
(AFL), or any other labor organization of its employees, by warnings
and threats of economic reprisals, by laying off any of its employees.
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition thereof.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Joseph Scanlon immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges;
(b) Post at its Barberton, Ohio, plant, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material :
(c) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. JOHN M. HOUSTON, dissenting:
I would dismiss the complaint in this case because I consider that
the union security agreement between the Company and the Union
falls within the meaning and intent of Congress as expressed in the
proviso to Section 8 (3) of the Act.26 The pertinent portion of
that agreement is found in a clause in the contract between the
Company and the Union which was in effect at the time when the
lay-offs occurred. That clause is as follows:
The Company agrees to continue the present practice of coopera-
tion with the Union to the best interests of all parties.
w The proviso is as follows - Provided , That nothing in this Act * * * shall pre-
clude an employer from making an agreement with a labor organization ( not established,
maintained , or assisted by any action defined )n this Act as an unfair labor practice) to
098 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
At the hearing before the Trial Examiner evidence was adduced to
show that this clause was written to express a verbal agreement
between the parties whereby the Company undertook to assist the
Union to maintain 100 percent dues-paying membership among the
employees in the unit for which the Company recognized the Union.
Although no issue was raised that the Union was not the majority
representative of the Company's employees in an appropriate unit,
the majority of the Board have, found that this clause, as interpreted
by explicit evidence as to its meaning and as to the practice of the
parties, is not protected by the proviso, and hence is not a defense
to allegations of violation of, Section 8 (3) arising out of the
disciplinary lay-offs in question.
The rationale of the majority concedes that this Board has hitherto
given effect to agreements providing for union security although such
agreements were oral in form,, Moreover, the majority recognize
that such decisions of this Board have been approved in the courts.
The basis of my colleagues' decision, then, lies in their narrow finding
that the clause in question reserves to the Company an unlimited
discretion as to whether the Company shall or shall not be bound
to require membership in the Union as a condition of employment.
Such discretionary latitude is found incompatible with the require-
ments of the proviso. The majority, however, have found that if
the "Supplemental Agreement Concerning the Cooperation Clause"
which the Company sought to introduce, had been in effect at the
time of the lay-offs, the respondent would have been justified in
laying off the four individuals concerned, "inasmuch as in that agree-
ment the respondent apparently bound itself to require membership
in the UMW as a condition of employment."
The alleged lack of certainty, therefore, in the mutual rights and
obligations of the parties under the cooperation clause, more
specifically those of the Company, constitutes the substance of my
colleagues' position. The undisputed testimony as to the history
of labor relations at this and other plants of the Company which
operate under the cooperation clause, in my judgment, emphatically
refutes the notion that there is such a lack of certainty and definite-
ness in the obligation of the Company as to render its agreement
invalid under the proviso.
It was contended by the Company at the hearing that it considered
itself bound to discipline a non-dues-paying employee if the Union
insisted upon such action. Similar contentions were made by both
the U. M. W. and the C. I. 0. Xis true that the Company reserved
a measure of discretion to itself with respect to the enforcement of
require, as a condition of employment , membership therein, if such labor organization is
the representative of the employees as provided in Section 9 (a) In the appropriate col-
lective bargaining unit provided by such agreement when made,
PITTSBURGH PLATE GLASS COMPANY 1099
disciplinary action against delinquent employees. This reservation,
however, was an integral part of the verbal agreement expressed
in the cooperation clause. This measure of discretion, moreover,
was limited to exceptional cases--cases where old age, illness or other
special circumstances created special equities in a delinquent's favor
against the ordinary and usual application of the Company's duty
to the Union. Indeed, the cases of the four individuals in question
here may properly be classified as coming within the exceptional
category 27 However, although the Company, in the exercise of this
limited measure of discretion may postpone action in a hardship
case, the record is clear that in no case in which the Union has insisted
upon discipline has the Company refused to acknowledge its obliga-
tion. It therefore appears that the Company and the contracting
unions recognize the cooperation clause as creating a binding com-
mitment upon all, and the record in no instance affords a basis for
a contrary conclusion. In such circumstances the alleged defect
which constitutes the basic factor in the majority decision appears
without support in the record before us. The "Supplemental Agree-
ment Concerning the Cooperation Clause," and the "Joint Interpreta-
tion" which accompanied it, which the majority have described as
now creating an apparent binding obligation on the Company, is
no more in substance than a codification of existing practice under
the cooperation clause. As such it does not create a new obligation
but merely reaffirms an old one.
The legislative history of the proviso to Section 8 (3) indicates
that it is permissive in character. Its enactment was premised upon
the desire of Congress to leave unaffected the many and diversified
forms of union security agreements extant in the various States
and throughout American industry. The use of the term "agree-
ment" in the proviso indicates the elasticity of the Congressional
intent in this respect. The requirements that the agreement be with
a bona fide union which was the representative of a majority of
employees in an appropriate unit when the agreement was made,
appear to be safeguards which the legislature erected to counteract
abuse of the permission granted in the proviso. In the instant case
it is conceded that these other requirements have been met. It seems
to me therefore that the agreement in question was of a type and form
sanctioned by the proviso.
Even a casual examination of the record in this case will disclose
a highly gratifying instance of successful labor-management relations.
Since 1941 in the Barberton plant, and since various previous dates
in the other plants of the Company, the relationship between the
unions and the Company under the cooperation clause has been
77 This explains the delay adverted to in the majority decision in regard to the treat-
ment of these individuals.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such as to indicate that the collective bargaining process has been
working. That the parties have achieved an amicable and thoroughly
workable modus operandi under something less than it "classic"
closed shop, originally demanded by the Union and rejected by the
Company, shows a rare allegiance to the principle and spirit of col-
lective bargaining. Moreover, the instances of disciplinary action
taken by the Company have been few.211 Doubtless the good faith
of the Company in undertaking its program of cooperation, with its
consequent education of the employees involved in the necessities of
the relationship, has borne fruit in a history of peaceful and stable
labor relations. There is no instance in this record of work stoppage
due to misunderstanding of the mutual rights and obligations of
the parties under the cooperation clause or to irritations arising
from lack of cooperation in that regard. This indicates, in my
judgment, it complete understanding of the respective positions under
the agreement of the employees on one hand and the management
on the other. The effect of the majority decision inevitably will be
to disrupt that understanding and to open tip and make uncertain
a relationship which has been stabilized for approximately 5 years.28
APPENDIX A
NOTICE TO ALL Ejn'LOYEEs PLitSUANT TO .1 DECISION AND ORDER
of the National Labor Relations Board , and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
WE WILL NoT encourage membership in Local Union # 13013, of
the Gas, By-Product Coke and Chemical Workers, District 50,
United Mine Workers of America or any other labor organiza-
tion of our employees , or discourage membership in Inter-
national Brotherhood of Boilermakers , Iron Ship Builders,
Welders and Helpers of America (AFL), or any other labor
organization of our employees , by warnings and threats of eco-
nomic reprisals, by laying off any of our employees, or by dis-
criminating in any other manner in regard to their hire or
tenure of employment , or any term or condition thereof, except
insofar as such conduct is protected by the proviso to Section
8 (3) of the Act.
WE WILL OFFER to the employee named below immediate and full
reinstatement to his former or substantially equivalent position
28 Some 40 disciplinary lay-offs have occurred in all plants of the Company employing
upwards of 20,000 employees.
With respect to the Rider to the Appropriations Act, I would find no bar to this
proceeding in that the Company at no time complied with the posting provisions therein.
PITTSBURGH PLATE GLASS COMPANY 1101
without prejudice to any seniority or other rights and privileges
previously enjoyed.
JOSEPH SCANLON
All our employees are free to become or remain members of the
above-named unions or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization, except
insofar as such conduct is protected by the proviso to Section 8 (3)
of the Act.
PITTSBURGH PLATE GLASS COMPANY,
(Columbia Chemical Division)
Employer.
Dated .................. By....................................
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
ment upon application in accordance with the Selective Service Act
after discharge from the armed forces.
This notice must remain posted for GO days from the date hereof,
and must not be altered, defaced, or covered by any other material.