Public Service Co. of Colorado

National Labor Relations Board - Board Decisions

Apr 14, 1950

89 N.L.R.B. 418 (N.L.R.B. 1950)

In the Matter of PUBLIC SERVICE COMPANY OF COLORADO and
CHARLES G. SMITH
In the Matter of LOCAL No. B-1436, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, A. F. L. and CHARLES G. SMITH
Cases Nos. 30-CA-13 and 30-CB-1.-Decided April 14,1950
DECISION
AND
ORDER
On September 13, 1949, Trial Examiner A. Bruce Hunt issued his
Intermediate Report. in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices,' and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of. the
Intermediate Report attached hereto. Thereafter, the Respondent
Union and the General Counsel, respectively, filed exceptions to the
Intermediate Report, together with supporting briefs 2
Oral argument, in which all parties participated, was heard by the
Board at Washington, D. C., on February 28,1950.
The Board has reviewed the rulings. made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby, affirmed.3 The. Board has considered the Inter-
mediate Report, the exceptions and supporting briefs, the oral argu-
ment, and the entire record in the case and hereby adopts the Trial
Examiner's findings of fact and conclusions only to the extent con-
sistent with this Decision and Order.4
'The complaint alleged violations of Section 8 (a) (1), 8 ( a) (3), 8 (b ) (1) (A), and
8 (b) (2) of the Act, as amended . The Trial Examiner found violations of each of these sub-
sections, as alleged , except Section 8 (b) (1) (A).
' The General Counsel also filed, on October 7, 1949, a motion for leave to amend the
complaint to allege that the Respondent Company violated Section 8 (1) of the Wagner
Act. In view of our findings herein, it is unnecessary for us to rule upon this motion.
' For the reasons stated herein , we do not affirm the Trial Examiner 's denial of the
Respondent Union ' s motion to dismiss made at the close of the hearing.
4 Although the Respondent Company filed no exceptions to the Intermediate Report, the
entire case has been opened up for Board consideration and disposition by the timely filing
of the Respondent Union's exceptions , which raise substantially the same questions of fact
and law as are raised in the proceeding involving the Respondent Company.
89 NLRB No. 51.
418
PUBLIC SERVICE COMPANY OF COLORADO 419
The facts are undisputed. On June 27, 1947, the existing contract
between the Respondent Company and the Respondent Union pro-
viding for the maintenance of union membership was amended to
include in addition the following paragraph, hereinafter referred to
as the support money provision :
Union membership for employees other than those covered in
the maintenance of membership provision] . . . shall not be
required as a condition of employment, but all employees in the
classifications covered by this Agreement shall, as a condition of
employment, within sixty (60) days after hiring, or commencing
August 1, 1947, pay to Union Two ($2.00) Dollars per month for
the support of the bargaining unit. [Emphasis added.] 5
Pursuant to the terms of this provision, Complainant Smith re-
ceived notice from the Respondent Union that he was delinquent in
support money payments for the months of August and September
1947. On September 29, Smith applied for membership, tendering a
money order for $7.50 to cover the initiation fee ($3.50) and 2 months'
membership dues. Smith's application was rejected at a regular
union membership meeting, for undisclosed reasons, but he was mailed
a receipt for $4 covering 2 months' "support money," and a check
for the balance of $3.50. Thereafter Smith refused to pay the bills he
received for "support money," and on March 17, 1948, upon the second
request of the Respondent Union, Smith was discharged.6 On June
14, 1948, by further amendment, the support money provision was
deleted from the contract.
As noted above, the support money provision was incorporated in
the contract on June 27, 1947, which was after the enactment but
before the effective date of the amended Act? The amended agree-
ment provided for expiration on June 1, 1948, and for yearly auto-
matic renewal thereafter. On these facts, all the parties agree, and we
find as did the Trial Examiner, that the savings clause in Section 102
of the amended Act 8 would operate to preserve the legality of the
5 After executing this contract amendment, the Respondent Company sent to each of its
employees a letter informing them of the contents of the amendment . It explained that
while it would not agree to the Union ' s proposal for a union shop because "there were
employees who for their own personal reasons would not care to join the Union," the
Company had agreed, in the alternative , to the support money provision in the contract to
promote more harmony among the employees.
8 Smith resumed his employment 4 months later in a different capacity , in which he was
outside the coverage of the contract.
T The amended Act was enacted June 23. 1947. and became effective August 22. 1947.
8 Section 102 reads ;
. . .the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor
Relations Act as amended by this title shall not make an unfair labor practice the
889227--51-vol. 8 9-2 8
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support money provision if that provision was valid under the original
National Labor Relations Act, herein called the Wagner Act.
The proviso to Section 8 (3) of the Wagner Act is controlling on the
issue. Section 8 (3) provides that it shall be an unfair labor practice
for_ an employer-
By discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discour-
age membership in any labor organization: Provided, That
nothing in this act . . . or in any other statute of the United
States, shall preclude an employer from. making an agreement
with a labor organization... . to require as a condition of em-
ployment membership therein, . . . [Emphasis added.]
Whether the Section 8 (3) proviso was intended to protect union
security provisions requiring as an employment condition something
other than actual "membership," presents a question upon which, as
noted by the Trial Examiner, the Board has never ruled directly.
. The Trial Examiner resolved the question by applying the principle
that provisos are to be construed strictly. Accordingly, he found, in
essence, as follows : The proviso to Section 8 (3) specifies "member-
ship" as thes permissible contract requirement upon which em-
ployment may be conditioned. The support money provision does not
require, and is not related to a requirement of "membership." The
proviso as written permits no alternative. Ergo, the support money
provision, and the discharge of Smith thereunder, were unlawful,
subst€mtially as alleged in the complaint. We do not agree.
The finding of the Trial Examiner is predicated on a rule of stat-
utory construction. However, it is well. recognized that such rules
have no substantive force in themselves but are to be utilized merely
as guides or aids in determining legislative intent, which is to be given
effect.
Provisos, therefore, should be construed to conform with the legis-
]ative,intent,9 and no presumption arises because of statutory form
that interpretations must be strict. Where only the wording of the
proviso is available to determine the intent of the legislature, it gen-
erally follows that the proviso should be strictly construed. But where
the legislative intent is otherwise clearly discernible from a reading of
performance of any obligation under a collective -bargaining agreement entered into
prior to the date of the enactment of this Act, or ( in the case of an agreement for a
period o f not more than one year) entered into on or after such date of enactment, but
prior to the effective date of this title, if the performance of such obligation would not
have constituted an unfair labor practice under section 8 (8 ) of the National Labor
Relations Act prior to the effective date of this title, unless such agreement was
renewed or extended subsequent thereto. [Emphasis added.]
sMcDonald v. United States , 279 U. S. 12.
PUBLIC SERVICE COMPANY OF COLORADO 421
the remainder of the statute, or from the legislative history, the con-
struction of the proviso need not be strict."
In any case, the strict construction principle does not necessarily
require that each word in a proviso be interpreted literally.11 The
question of literalness in statutory ^ construction poses an entirely
different problem. It is apparent that the Trial Examiner, in
"strictly" construing the proviso to Section 8 (3), has simply in-
terpreted the term "membership" literally.-
We are mindful of the fundamental principle that if the words of
a statute are plain and unambiguous, it is unnecessary, and indeed
improper, to look behind the statute for purposes of interpretation.
It is necessary in each instance, however, to reach a conclusion as to
whether the words are plain and unambiguous. Patently, when par-
ticular language of a statute reasonably admits of two or more con-
flicting inferences,13 the legislative intent should be ascertained and
effectuated." Under the latter circumstances, it is entirely appro-
priate in ascertaining the legislative intent, to examine explanatory
legislative history 15 and, inter alia, the purposes and objectives of the
statute.16
It is the position of the Respondent Company and the Respondent
Union herein that the term "membership," as used in the proviso to
Section 8 (3), was not intended to fix the exclusive permissible re-
quirement in a union security contract upon which employment could
be' conditioned (i. e., the interpretation of the Trial Examiner), but
was meant to delineate the ultimate degree of union security in a con-
tract to be afforded the protection of the proviso. As a lesser form of
11 Southerland , Statutory Construction , Sections 2933, 2936.
11 It is true that in some Board decisions reference was made to the necessity of
strictly construing the Section 8 (3) proviso. However, those cases establish only that
the Board will strictly enforce, e. g., the terms of the proviso pertaining to employer
domination or assistance ; majority representation of the contracting union ; the existence
of an appropriate unit; and standards of clarity in the union security provision.
12 The cases adverted to by the Trial Examiner in support of his construction theory,
namely, N. L. R. B. v. Electric Vacuum Cleaner Co., Inc., et at., 315 U. S. 685 ; and
American -West African Lines, Inc., 21 NLRB 691, are to be distinguished in that they
deal with inapposite issues. The former case was concerned with the question of
whether the employees should be notified of the existence of a closed shop contract for
such a contract to be operative under the Section 8 (3) proviso ; the latter case removed
from the proviso 's coverage a "preferential treatment" contract pursuant to which the
employer accorded the union undue assistance and favoritism.
11 In the language of the Supreme Court , "words are inexact tools at best , and for that
reason there is wisely no law forbidding resort to explanatory legislative history, no
matter how clear the words may appear on superficial examination ." Harrison v.
Northern Trust Co., 317 U. S. 476, 479.
14 Sutherland, Statutory Construction, Sections 4706, 5505.
11 Harrison v. Northern Trust Co., supra.
16 .onamotor Oil Co . v. Johnson, 202 U. S. 86.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union security," the Respondents contend, the support money provi-
sion is so protected. In our opinion, such a construction is not per se
unreasonable from a mere reading of the proviso.
Viewing the legislative history of the Wagner Act, the most perti-
nent single reference therein to the reason for inserting the Section 8
(3) proviso is to be found in the Senate Committee Report on the bill:
According to some interpretations, the provision of section 7
(a) of the National Industrial Recovery Act, assuring the freedom
of employees "to organize and bargain collectively through rep-
resentatives of their own choosing," [Section 7 of the National
Labor Relations. Act] was deemed to illegalize the closed shop.
The committee feels that this was not the intent of Congress
when it wrote Section 7 (a) of the National Industrial Recovery
Act and it is not the intent of Congress today, and that it is not
desirable to interfere in this drastic way with the laws of the
several States on this subject.
... the bill does nothing to facilitate closed-shop agree-
ments or to make them legal. in any State where they may be ille-
gal ; it does not interfere with the status quo on this debatable sub-
ject but leaves the way open to such agreements as might now, be
legally consummated... ?$ [Emphasis added.]
This explanation of the proviso is reflected throughout the legisla-
tive proceedings on the bill. For example, the following statement
on the Senate floor by Senator Wagner, the Act's sponsor, is similarly
illuminating :
[The proviso] does no more than legalize a closed-shop agree-
ment which is a matter of agreement between the employer and
employees where it is now sustained by the public opinion of the
State. . . . The provision will not change the status quo. .18
[Emphasis added.]
Significantly, the proviso to Section 8 (3) originally appeared in
substantially the same form as Section 3 (4) of a bill (S. 2926) in-
troduced by Senator Wagner in 1934 and the Senate Committee Re-
port 20 on this measure stated:
"That the support money provision, sometimes called "the agency shop" or the
"Windsor clause," is recognized as a form of union security agreement, see, for example,
BNA, Collective Bargaining Contract Provisions, Section 87: 761; National Industrial
Conference Board, Inc., Studies in Personnel Policies, No. 94 (1948) ; United States
Bureau of Labor Statistics, Bulletin No. 908 In re Arbitration between the Ford Motor
Company of Canada, Limited, and UAW-CIO, 1 LOR 439, and War Labor Board cases
cited infra, note 26.
11 Senate Report No. 573, 74th Cong., 1st Sess., p. 11.
1179 Cong. Rec. 7673, 7674 (\Iay 16, 1935).
20 Senate Report 1184, 73rd Cong., 2d Sess., p. 6.
PUBLIC SERVICE COMPANY OF COLORADO 423
The proviso that follows the fourth unfair labor practice (but
which governs the whole act as well as other statutes) is not
intended to require any employer to enter into an agreement con-
ditioning employment upon membership in any labor organiza-
tion. Indeed neither here nor elsewhere in the act is there a duty
imposed upon an employer to make any particular contract. An
employer will presumably make a reasonable effort to reach an
agreement with his workers or their representatives when and if
they seek to negotiate with him ; but the terms of that agreement
are for the parties to settle by collective bargaining. This proviso
is not a mandate, but is a permissive exception made necessary by
other provisions of the law. If this proviso were not in the bill,
a willing employer and willing employees could not of their own
accord agree that thereafter a person seeking employment should
be required as a condition of employment, to join the employees'
organization. [Emphasis added.] 21
It seems clear from the Wagner Act's legislative history that the
proviso to Section 8 (3) was intended to be permissive and not exclu-
sive in character. It does not appear to have been the intent of Con-
gress to select only a particular type of union security agreement to
be exempted from the operation of the Act. On the contrary, it is
reasonable to infer that any agreement "as might now be legally con-
summated" 22 was immunized by the terms of the proviso. Certainly,
agreements affording varying measures of security to a contracting
labor organization, other than "membership" guarantees, could "then"
legally have been consummated in most States. 23
Moreover, it may be generally observed that the Wagner Act was
expressly designed to remedy "inequality of bargaining power between
employees . . . and employers." 24 To construe the term "mem-
bership" in the Section 8 (3) proviso as denoting the sole requirement
a collective bargaining agent could obtain in a contract as a legitimate
measure of security, would necessarily restrict, rather than aid em-
ployees and their representatives in collective bargaining. It is
hardly likely, therefore, that Congress, while undertaking to bolster
employee bargaining power, could have intended to insist that the
"Although the term "closed shop contract" appears throughout the legislative history
of the proviso to Section 8 (3), It has already been clearly established in Board and court
decisions that the proviso contemplates at least such other types of union security agree-
ments as union shop, maintenance of membership , and preferential hiring. See, e. g.,
Opinion of Robert B. Watts , NLRB General Counsel , On Legality of Union Maintenance
Clause, 10 LRRM 1294 ( 1942).
22 I. e ., exclusive of the type of domination and assistance proscribed in the Act.
23 It was not alleged that the contract in issue was illegal in Colorado , and it does not
appear that such a contract , when written , would have been invalid under the Colorado State
Labor Peace Act (Colo. State's Ann., c. 97 ( Supp. 1946) ).
14 NLRA : Findings and Policies.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agent be successful in obtaining in collective bargaining
negotiations only the stronger forms of union security, i. e. member-
ship guarantees, and that lesser concessions on the part of employers
would not be accorded the protection of the proviso.
For the above reasons, therefore, it is our opinion that the support
money provision is a valid union security agreement 25 within the
meaning of the proviso to Section 8 (3) of the Wagner Act.26
The Trial Examiner found it unnecessary to decide the "subsidiary
question : Whether the [Respondent Union] could function as a `closed
union,' denying membership to employees for whom it was the statu
tory bargaining representative and simultaneously insisting upon the
payment of `support money' by them." In view of his holding, how-
ever, that the support money provision was unlawful, the question, in
his opinion, was rendered moot. The General Counsel excepted to
this failure to find the "closed union" violation, as alleged in the com-
plaint, and at the oral argument, advanced the further contention-that
Smith's discharge, following the Union's rejection of his membership.
application, was a violation '27. even if the Board found the contract
itself to be valid.
We do not believe that a "closed union" violation, as the term is:
described by the Trial Examiner and the General Counsel, would lie
under the facts in this case irrespective of the validity of the support
money provision, as such. The contract in question provides for main-
tenance of membership plus a support money provision covering non-
members. Thus, there is no contractual obligation upon an employee
to become a member; his employment is not in jeopardy. In these
The contention that the exaction of dues from a nonmember pursuant to the terms of
the support money provision is a tax, and as such, is unconstitutional, has no merit.
United States v. Butler, 279 U. S. 1.
26 As noted above, there appears to be no Board precedent on the precise issue herein.
It is of some significance, however, that in numerous cases the War Labor Board, which
was expressly required by the War Labor Disputes Act to conform to the provisions of the
National Labor Relations Act, upheld the validity of contracts containing union security
requirements other than "membership," as a condition of employment. See, for example,
Walker-Turner Co., 1 WLR 101 ; Federal Shipbuilding & Drydock Co., 1 WLR 140 ; Cam-
bridge Tile Mfg. Co., 2 WLR 271; F. S. Itoyster Guano Co., 12 WLR 510; Southern Colorado
Power Company, 18 WLR 314; Alexander Primal Co., 21 WLR 219; California Processors
and Growers, Inc., 24 WLR 491; Pacific Fruit & Produce Company, 26 WLR 129. (For
the most part, these cases proceed on the principle that since the parties have voluntarily
agreed to such provisions, it is the established War Labor Board policy to extend the union
security provisions previously entered into through collective bargaining.) Although, as
we have frequently held, the rulings of the War Labor Board are in no way binding upon
us, we are nevertheless not precluded from according due consideration to such decisions,
especially where, as here, there is no other direct case authority on the question.
27 As previously noted, the reasons for the rejection of Smith's membership application
are not shown. in the record. His application was considered at a regular membership
meeting and processed in accordance with the procedures provided in the Union's constitu-
tion and bylaws. It is not alleged, assuming its relevancy, that Smith was rejected by the
Union discriminatorily, or that membership was not available to him on the same terms
and conditions applicable to other members.
PUBLIC SERVICE COMPANY OF COLORADO 425
circumstances, we fail to see how the denial of union membership can
constitute a violation of the Act.
The cases relied upon by the General Counsel are entirely distin-
guishable. They hold that an exclusive bargaining agent, having a
contract or otherwise, must represent without discrimination all
employees in the unit. This principle imposes no duty upon such a
union to admit all employees to membership. In the case at hand,
there is no showing that the Respondent Union, as the exclusive bar-
gaining agent, failed to represent fairly complainant Smith, or any
other employee .211
As the Supreme Court quoted with approval in the Colgate case,29
a labor organization has the "right . . . to reject or expel per-
sons who refuse to abide by any reasonable regulation of lawful policy
adopted by the union." 3o The argument that the "support money"
requirement in the contract is necessarily contingent upon the Union's
acceptance of an employee membership application finds no support
in either the contract or in the statute. The Wagner Act was not con-
cerned with an employee's right to membership in a union and held no
guarantee of membership,31 even where, in a union security contract,
membership is made a condition of employment.
In the Colgate case,32 the Supreme Court stated that "to achieve sta-
bility of labor relations was the primary object of Congress in enacting
the National Labor Relations Act." Restricting the form of enforce-
able union security to a requirement of "membership," especially in
circumstances, as in the present case, in which an employer is unwilling
to grant the union full membership protection but is amenable to a
lesser form of security would, in our opinion, operate to impede col-
lective bargaining and to disrupt stable labor relations. Conversely,
we believe that by affording the parties a wider area of agreement in
collective bargaining with respect to union security and protecting
the legitimate product of their bargaining tends more to achieve such
stability of labor relations.
R8 Steele v. Louisville and Nashville Railway Company, 323 U. S. 194 ; Tunstall v. Brother-
hood of Locomotive Firemen and Engineers, 333 U. S. 21. See also numerous Board cases
on the proposition that it is no impediment to a Board certification that a labor organization
places restrictions upon membership if such a labor organization is willing to, and does
during the existence of its certificate, adequately accord representation to all employees in
the appropriate bargaining unit, e. g., Northern Redwood Lumber Co., 88 NLRB 272 ;
Plywood Plastics Corporation, 85 NLRB 265; Norfolk Southern Bus Corporation, 83
NLRB 115; Coast Pacific Lumber Co., 81 NLRB 1351; The Baldwin Locomotive Works,
76 NLRB 922; Hollywood Brands, Inc., 70 NLRB 706; Larus & Brother Company, 62
NLRB 1075.
21 Colgate-Palmolive-Peet Co. V. N. L. R. B., 338 U. S. 355.
2° Marioeship Corp., 25 Cal. 2d 721. See also, Courant v. International Photographers
of the Motion Picture Industry, Local 659, 176 F. 2d 1000 (C. A. 9).
8' See , e. g., Laru8 & Brother Company, supra.
82 Colgate-Palmolive-Peet Co. v. N. L. R. B., supra.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the discharge of Complainant Smith was
in lawful pursuance of the terms of the support money provision
which, as we have. found above, constituted a valid agreement under
the proviso to Section 8 (3) of the Wagner Act, and the legality of
which was preserved by Section 102 of the amended Act. We shall
therefore .dismiss the complaint in its entirety.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent Company, Public Service Company of Colorado, Boulder,
Colorado, and the Respondent Union, Local No. B-1436, International
Brotherhood of Electrical Workers, A. F. L., Boulder, Colorado, be,
and it hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Airs. Margaret Fassig and Mr. James Sullivan, for the General Counsel.
Lee, Bryans, Kelly ,& Stansfield, by Mr. Charles Kelly, of Denver, Colo., for the
Company.
Graham & Schennemann, by Mr. Charles A. Graham, of Denver, Colo., for the
Brotherhood.
STATEMENT OF THE CASE_
Upon charges and amended charges duly filed by Charles G. Smith, an indi-
vidual, the General Counsel for the National Labor Relations Board,' by the
Regional Director for the Seventeenth Region (Kansas City, Missouri), issued
a complaint dated October 27, 1948, against Public Service Company of Colorado,
herein called the Company, and Local No. B-1436, International Brother-
hood of Electrical Workers, A. F.. L., herein called the Brotherhood and jointly
referred to as the Respondents, alleging that the Respondents had engaged in
and were engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2), respec-
tively, and Section 2 (6) and (7) of the Labor Management Relations Act, 1947,
61 Stat. 136, herein called the Act or_ the Labor Management Act. Copies of the
complaint, accompanied by an order consolidating the cases and a notice of hear-
ing, were duly served upon Smith, and copies of these documents, as well as copies
of the charges, were duly served upon the Respondents.
With respect to the unfair labor practices, the complaint alleged in substance
that : (a) by entering into an amended agreement on June 27, 1947, which required
employees to pay to the "Union two dollars ($2.00) per month for the support of
the bargaining unit," the Company interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, and the Brotherhood restrained
and coerced, and is restraining and coercing, the employees in the exercise of
their rights guaranteed in Section 7 of the Labor Management Act; and (b) on
'The General Counsel and the attorneys representing him at the hearing are referred
to as the General Counsel. The National Labor Relations Board is referred to as the
Board.
PUBLIC SERVICE COMPANY OF COLORADO 427
or about March 17, 1948, the Company, at the request of the Brotherhood, dis-
charged and thereafter refused to reinstate Smith to his former or a substantially
equivalent position because of Smith's failure to make the monthly payments
required by said amended agreement.
On November 5 and 6, 1948, the Company and the Brotherhood, respectively,
filed their separate answers in which they admitted certain allegations of the
complaint, particularly that they had executed the amended agreement and that
Smith had been discharged by the Company, at the request of the Brotherhood
because of his failure to make said payments to the Brotherhood, but denying
that they had engaged in unfair labor practices.
Pursuant to notice, a hearing was held on November 9, 1948, at Denver, Colo-
rado, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondents were represented by
counsel and all participated in the hearing. Full opportunity to be heard and to
introduce evidence bearing on the issues was afforded all parties, but there being
agreement upon all the facts the counsel rested their cases upon documentary
evidence and stipulations of fact without calling any witnesses. At the opening
of the hearing, the Brotherhood moved that the complaint be dismissed upon the
ground that it did not allege, and that the charges did not support, an allegation
of an unfair labor practice under either the original National Labor Relations
Act, 49 Stat. 449, herein called the Wagner Act, or under the Labor Management
Act. I denied the motion with leave to renew. At the close of the hearing, the
motion was renewed and was taken under advisement. It is hereby denied. The
parties did not avail themselves of an opportunity to argue orally, but pursuant
to leave granted the General Counsel and the Brotherhood filed briefs.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a Colorado corporation, has its principal office and place of
business at Denver, Colorado, and maintains a branch plant at Boulder, Colorado.
It is engaged in the production, distribution, and sale of electrical energy and gas. .
During the year 1947, the Company purchased 90,563,114 kilowatt-hours of
electric energy from points within the State of Colorado. The Company's require-
ments of natural gas are furnished largely from points within Texas. It manu-
factures not more than 1/10 of 1 percent of those requirements, and purchases
11.3 percent, amounting to 2,259,467 thousand cubic feet, from its wholly owned
subsidiary, Colorado-Wyoming Gas Company. The balance, about 88 percent of
its requirements, is purchased from Colorado Interstate Gas Company, which
transports the gas from points in the State of Texas.
The Company's subsidiary, Colorado-Wyoming Gas Company, owns natural gas
pipelines originating at Denver and terminating at Cheyenne, Wyoming, and sells
gas to Cheyenne Light, Fuel and Power Company, which is another wholly owned
subsidiary of the Company. The parties agree, and I find, that the Company is
engaged in commerce within the meaning of the Act. .
II. THE BROTHERHOOD
Local No. B-1436, International Brotherhood of Electrical Workers,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act,
which admits to membership employees of the Company.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The facts
The Brotherhood represents employees of the Company at the latter's opera-
tions in Boulder, Colorado. Together with three sister local unions, which rep-
resent employees of the Company at other operations, the Brotherhood maintains
contractual relations with the Company. There is no question here of the ap-
propriateness of the bargaining units, the majority status of the unions, or
domination of or unlawful support to them by the Company at the times of
execution of the agreement and amended agreement mentioned immediately
below.
On August 23, 1946, those parties entered into an agreement, the legality of
which is not attacked, which provides in Article II :
3. Union Security.
(a) All employees who on August 23, 1946, are members of Union in good
standing in accordance with its Constitution and By-Laws, and all employees
who become members after August 23, 1946, shall as a condition of employ-
ment maintain their membership in Union in good standing up to June 1,
1947. However, any such employee who shall have, requested the withdrawal
or cancellation of his application for membership in Union or requested the
withdrawal or cancellation of his Union membership within fifteen (15)
days after the signing of this Agreement, with registered letters, return
receipts requested, addressed to Union and Company, shall not be required
as a condition of employment to maintain membership in good standing in
Union for the duration of this Agreement, unless after said date employee
again becomes a member.
(b) In the event this Agreement is renewed from term to term of one
year after June 1, 1947, a Union member shall have the right to withdraw
or cancel his membership in the manner provided in Paragraph 3 (a) of
this Article ; provided his application for withdrawal or cancellation shall
have been mailed within ten (10) days after the particular June 1st involved.
On June 27, 1947, 4 days after the enactment of the Labor Management Act,
but prior to the effective date of Title I,2 the Company, the Brotherhood, and its
sister locals executed an amended agreement, modifying the earlier agreement
and continuing it in effect as modified until June 1, 1948, and from year to year
thereafter unless terminated or altered pursuant to appropriate provisions
thereof. There was added to Article II, Section 3, a paragraph, and it is this
paragraph which is in issue. It reads:
(c) Union membership for employees other than-those covered in (a) and
(b) above shall not be required as a condition of employment, but all
employees in the classifications covered by this Agreement shall, as a con-
dition of employment, within sixty (60) days after hiring or commencing
August 1, 1947, pay to Union two dollars ($2.00) per month for the support
of the bargaining unit.
2 Section 104 is as follows : "The amendments made by this title shall take effect sixty
days after the enactment of this Act. . . .
PUBLIC SERVICE COMPANY OF COLORADO 429
Shortly before September 29, 1947, F. M. Rhodes, financial secretary of the
Brotherhood, mailed to Complainant Smith, a nonmember of the Brotherhood,
a notice that he was indebted to the Brotherhood in the sum of $4, covering the
payments for August and September. On September 29, Smith' filed his appli-
cation for membership, accompanying it with a money order for $7.50. The
application was rejected and , on October 10, Rhodes mailed to Smith a receipt
for $4, representing payment to "Bargaining Unit Support August and September,
1947," and a check for $3.50, representing the amount of the initiation fee which
would have been payable if the application had been accepted. The record does
not disclose the reason for rejection of the application, but it is clear that the
determination of admissibility to membership is made by a majority vote of the
members present at a union meeting and that under the constitution of the
Brotherhood the name of a rejected applicant "shall not again be proposed for
six months, and the admission fee shall be returned to the applicant." It is
clear too that the dues of the Brotherhood are $2 per month, an amount equal
to the monthly payments set for the nonmembers.
Smith made no further payments to the Brotherhood. During December, he
was billed by the Brotherhood in the sum of $6, covering the payments for that
and the preceding 2 months, and during January 1948 he was billed in the sum
of $8' On February 18, 1948, by letter, the Brotherhood requested the Company
to discharge Smith for his failure to make the payments. On March 5, the
Company replied, asserting that to discharge Smith would "tend to discredit
your Union" and that "he might very well have a foundation for legal action
because of an unfair labor practice."' On March 15, the Brotherhood renewed
its request for Smith's discharge and 2 days later the Company complied with
the request.'
The quoted union security provisions of the.contract continued in effect until
June 14, 1948. On that date the Respondents entered into another amended
agreement, deleting all quoted provisions and substituting therefor a provision
which is not in issue here.
B. The issue
Our question is whether Article II, Paragraph 3 (c), above quoted, was valid
under the proviso to Section 8 (3) of the Wagner Act. All counsel agree that
Paragraph 3 (c), having been adopted before the effective date of the material
portions of the Labor Management Act, and the expiration date of the para-
s There is some indication that additional billings were given to Smith, but probative
evidence is not in the record.
4 There is some indication in this letter, as well as in other correspondence which appears
in the exhibits , that Smith agreed to pay the amount in arrears , but that the Brotherhood
would not accept it. I refused to receive the documents to establish such inclination or
effort on the part of Smith. and stated that if the General Counsel contended that such
effort has been made by Smith it would be necessary to offer probative testimony to that
effect. No such testimony was offered. The Company's concern that an unfair labor
pradtice proceeding might result appears to have been based upon a. belief that Smith made
a later tender of the delinquent payments, rather than upon a belief that Article II, Para-
graph 3 ( c), was invalid . The good faith of the contracting parties in entering into the
amended agreement is not in question.
Within 4 months after the discharge, the Company reemployed Smith in a different
position and he has continued in its employ at least until the time of the hearing.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graph being within 1 year after its adoption, if valid under the Wagner Act,
was protected by Section 102 of the Labor Management Act.'
. Section 8 (3) of the Wagner Act made it an unfair labor practice for an
employer :
By discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership
in any labor organization : Provided, That nothing in this Act . . . shall
preclude an employer from making an agreement with a labor organization
(not established, maintained, or assisted by any action defined in this Act
as an unfair labor practice) to require, as a condition of employment, mem-
bership therein, if such labor organization is the representative of the em-
ployees as provided in section 9 (a), in the appropriate collective-bargaining
unit covered by such agreement when made. [Latter emphasis supplied.]
As stated, there is no issue involving the majority status of the Brotherhood,
its freedom from domination or unlawful support by the Company at the time
of execution of the amended agreement, or the appropriateness of the bargaining
unit. Our question is whether the quoted proviso permitted a requirement that
employees who were not members of the Brotherhood should be required as a
condition of employment to make monthly payments to the Brotherhood equal
in amount to the monthly dues of employees who were members. The answer
depends upon an interpretation of that portion of the proviso which permits,
under prerequisites which have been met here, a requirement "as a condition of
employment membership therein." According to the General Counsel, the re-
quirement in Article II, Paragraph 3 (c), that nonmembers of the Brotherhood
pay to it money "for the support of the bargaining unit" is clearly distinguish-
able from a requirement of "membership in a labor organization, and therefore
the proviso [to Section 8 (3) ] does not protect the discharge" of Smith. On
the other hand, the Brotherhood argues that:
The [Wagner] Act did not suggest, and the Board did not find that the
proviso protected just those contracts exactly requiring membership as a
condition of employment. Had this been done the requirement of a hiring
hall, preferential hiring, maintenance of membership, journeyman status,
union apprenticeship training, work permits-all would have been illegal.
Each requires either more or less than membership.?
Section 102 reads :
. . . the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor
Relations Act as amended by this title shall not make an unfair labor practice the
performance of any obligation under a collective-bargaining agreement entered into
prior to the date of the enactment of this Act, or (in the case of an agreement for a
period of not more than one year) entered into on or after such date of enactment,
but prior to the effective date of this title, if the performance of such obligation would
not have constituted an unfair labor practice under section 8 (3) of the National
Labor Relations Act prior to the effective date of this title, unless such agreement was
renewed or extended subsequent thereto. [Emphasis supplied.]
T Counsel for the Brotherhood did not cite any case to establish that in any instance
mentioned the Board had approved a union security provision which failed to require actual
membership in the contracting labor organization, nor have I found such authority. See
Rosenfarb, The National Labor Policy, pp. 278 et. seq., where the author, in commenting
upon the two cases mentioned in the footnote next below, discusses various types of con-
tracts which provide for preferential union treatment.
PUBLIC SERVICE COMPANY OF COLORADO 431
The Trial Examiner should not condemn the very lenience of the parties.
When they could have required membership and all its obligations, they
should not be said to have erred in that they exacted only one.
C. The authorities
As related below, widespread use has been made of contractual provisions
such as Paragraph 3 (c). However , notwithstanding the widespread use, the
issue of legality under the Wagner Act appears never to have been posed
squarely to the Board.
In National Electric Products Corporation , 3 NLRB 475 , the Board had
before it a contract which required employees to join the contracting union or,
in the alternative , to "have deducted from their pay a sum equal to" the dues
of the union . The Board pointed out that the proviso to Section 8 (3) "speaks
of an agreement with a labor organization requiring as a condition of employment
`membership therein,' " and that the contractual provision was "not so limited,"
but the Board found it unnecessary to pass upon the precise question because
the union had not met the prerequisites to the proviso.'
Another early case involving preferential treatment to a labor organization
is American-West African Lines , Inc., 21 NLRB 691. In that case there was
a valid agreement requiring membership in the contracting labor organization
as a condition of employment . In addition , the employer granted to that labor
organization the right of exclusive access to its vessels for organizational pur-
poses, and denied the same freedom of access to a second labor organization.
The Board assumed, without deciding, that the preferential treatment in the
access to vessels came within the intent and language of the union security
provision of the contract , but nevertheless concluded that the employer's
"favoritism contravened the Act" because it went beyond the area of permissible
support to a labor organization afforded by the proviso to Section 8 (3). The
Board said , at page 705:
.. . the proviso clause to Section 8 ( 3) allows, where its terms are met, the
making and performance of an agreement to require membership in a labor
organization as a condition of employment . It neither provides nor allows
the rendering of assistance or support to that labor organization beyond that
existent in conditioning employment on union membership . Were the rule
otherwise , what was intended by the Congress merely as an exclusionary
clause, removing from the operations of the Act agreements of the character
set forth in the proviso , could be converted into a license to destroy the basic
rights which the Act confers.
Of the cases which have arisen before the Board , the above ones represent the
closest in analogy to the instant case. An even more analogous case arose in
1943 under the Wisconsin Employment Peace Act e which statute , insofar as
8 In its Third Annual Report , for the fiscal year in which the Electric Products case was
decided, the Board said at page 89 : "The discharge or other discrimination , is of course, not
privileged under the proviso unless occurring pursuant to a bona fide agreement which
actually does require as a condition of employment membership in a labor organization."
[Emphasis supplied .] Clinton Cotton Mills, 1 NLRB 97, 110 , the factual situation
differed from that in the instant case, but certain language of the Board is apt here.
The Board commented : "The proviso [ to Section 8 (3)] . . . is limited solely to the
requirement of membership in a stated labor organization as a condition of employment.
Other discriminatory conditions of employment are not protected by the proviso."
' Wis. Stat. ( 1943 ) Chap. 111, 4 LRRM 962.
432 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
material here, is quite similar to the Wagner Act. However, the interpretation
of that statute by the Supreme Court of Wisconsin, as described in the footnote,
gives the case little persuasive weight in a determination of the issue here.15
Still additional cases in other jurisdictions, which do not bear on the legality of
Paragraph 3 (c) of the Respondents' contract, but which indicate the widespread
use of similar provisions, are set forth in the footnote.11
D. Conclusions
I am of the opinion that Article II, Paragraph 3 (c), of the Respondents'
contract was outside the protective language of the proviso to Section S (3) of
the Wagner Act. It is an elementary principle of statutory construction that
provisos are to be construed strictly, and the words of the proviso in question
"must have been carefully chosen to express the precise nature and limits of
"International Union , United Automobile, Aircraft, etc. v. Wisconsin Employment
Relations Board , 245 Wis. 417, 14 N . W. 2d 872 ( 1944 ), 14 LRRM 771, rehearing
denied 15 N. W. 2d 873 (1944 ), 15 LRRM 629. The case is the subject matter of an
interesting note at 1945 Wis. L. Rev. 111 , and the lower court ' s opinion is reported.
at 13 LRRM 733 . The facts briefly are that in 1943 the N . L. It. B. certified the
union as the exclusive representative . of certain employees of the Wisconsin Motor
Corporation , and within 2 months the parties executed an agreement providing for
maintenance of membership and that nonmembers should be required to obtain from the
union working permits at a cost not to exceed 11/Z times the amount of the union's dues..
Two employees , not having complied with the requirement , were discharged , and proceed-
ings were instituted before the State Board . • The State statute, Section 111 . 06 (1) (c)
provides that it shall be an unfair labor practice for an employer :
To encourage or discourage membership in any labor organization . . . by dis-
crimination in regard to hiring, tenure or other terms or conditions of employ-
ment ; provided, that an employer shall not be prohibited from entering into an
all union agreement with the representatives of his employees in a collective bar-
gaining unit , where three-quarters or more of the employees in such collective bar-
gaining unit shall have voted affirmatively by secret ballot in favor of such all
union agreement in a referendum conducted by the board . . . . [ Latter emphasis;
Supplied.]
The State Board found that the agreement was proscribed by the statute , but there
is a clear implication that the agreement would have been valid had It been approved
by three -quarters of the employees . The State Supreme Court , however , held that the
words "all union agreement " in the proviso were synonymous with "closed shop agree-
ment ," that the contract was not of the closed shop type so that "the lack of a vote
of the employees" was immaterial , and that the discharge of the two employees unlaw-
fully encouraged membership in the union . Three justices dissented . Since the inter-
pretation placed upon the State statute is to be contrasted with the N . L. R. B.'a
approval of agreements which constitute less than closed shops, such as those provid-
ing for maintenance of membership , as being within the protection of the proviso to
Section 8 ( 3) of the Wagner Act , the Wisconsin case presents no analogy In law to-
the instant proceeding . Cf. Cutler-Hammer, Inc., v . I. A. M., 20 LRRM 2522 (1947)
and note thereon at 15 Univ. of Chi . L. Rev. 724.
n Several cases in which the War Labor Board and certain of its Regional Boards
approved similar provisions , previously negotiated by the parties, are : Southern Colorado
Power Company and I. B. E. IV., 18 War Labor Reports 314, 15 LRRM 1796 ; In re
California Processors and Growers , Inc., 15 LRRM 1613; and Pacific Fruit and Produce
Company, 15 LRRM 1814. A New York case, Greenwald v. Chiarella, 63 N. Y. S. 2d 49,
18 LRRM 2218 ( 1946 ), is the subject of a note, Employer's Liability Under Checkoff Con-
tract for Non-Union Employee's Dues , ( 1947 ) 47 Col. L . Rev. 143. An interesting opinion
is that of Justice I. C. Rand of the Supreme Court of Canada as arbitrator in In re
Arbitration between Ford Motor Company of Canada , Limited, et al, 46 Labour Gazette
1.23 (Jan. '46), 17 LRRM 2752 , in which Justice Rand awarded "a check-off compulsory
upon all employees who come within the unit" in an amount equal to that which "may
from time to time be assessed by the union on its members, " exclusive of special assess-
ments and initiation fees. At 47 Labour Gazette 920 (July '47 ) there . appears the
statement that this form of union security "has since been adopted in other collective
agreements both in Canada and the United States."
PUBLIC SERVICE COMPANY OF COLORADO 433
permissible employer activity in union organization.) 12 Paragraph 3 (c) does
not require membership in the Brotherhood as a condition of employment. It
requires instead an alternative to membership, the payment of "support money"
each month. Of course, the Respondents could have negotiated a requirement
that all employees become and remain members of the Brotherhood, and as a
consequence each employee would have been obligated to pay in dues a sum
equivalent to the amount of the "support money." But in that event the require-
ment of financial support would have flowed from and have been incidental to
the requirement of membership. Here the requirement of financial support is not
related to membership. It admittedly is separate and apart therefrom. It is an
alternative to membership, and membership is the only permissible requirement
of the proviso to Section 8 (3). I do not believe that the proviso permitted of
alternatives. I find that Paragraph 3 (c) was unlawful13
Having found that Paragraph 3 (c) is outside the scope of the proviso to
Section 8 (3) of the Wagner Act, it is well established that the discharge of
Smith would have been in violation of Section 8 (1) and (3) thereof, had it
occurred prior to the effective date of the Labor Management Act. The discharge
occurred on March 17, 1948, and it is alleged that the Company thereby violated
Section 8 (a) (1) and 8 (a) (3) of the Labor Management Act and that the
Brotherhood, by requesting the discharge of Smith for the reason stated, thereby
violated Section 8 (b) (1) (A) and 8 (b) (2) of the same legislation.
Section 8 (a) (3), in amending Section 8 (3), made no change in the particular
wording of the proviso under which it has been found that Paragraph 3 (c) of
the contract was invalid.14 It follows that by the discharge of Smith, the Com-
pany has discriminated in regard to his hire and tenure of employment, thereby
encouraging membership in a labor organization, and has interfered with, re-
strained, and coerced, and is interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act16
11 N. L. R. B. v. Electric- Vacuum Cleaner Co., Inc., et al., 315 U. S. 685, 695, 62 S. Ct.
846, 851 (1942).
13 It will be recalled that Complainant Smith's application for membership in the
Brotherhood was rejected. The finding that Paragraph 3 (c) was unlawful makes it
unnecessary to decide a subsidiary question : whether the Brotherhood could function as
a "closed union," denying membership to employees for whom it was the statutory bar-
gaining representative and simultaneously insisting upon the payment of "support money"
by them. Several authoritative cases will not be cited or discussed because the finding
respecting Paragraph 3 (c) renders the question moot.
14 Section 8 (a) (3) provides that it shall be an unfair labor practice for an employer-
by discrimination in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in any labor organi-
zation : Provided, That nothing in this Act, or in any other statute of the United
States, shall preclude an employer from making an agreement with a labor organ-
ization (not established, maintained, or assisted by any action defined in section
8 (a) of this Act as an unfair labor practice) to require as a condition of employ-
ment membership therein on or after the thirtieth day following the beginning of
such employment or the effective date of such agreement, whichever is the later,
(i) if such labor organization is the representative of the employees as provided
in section 9 (a), in the appropriate collective-bargaining unit covered by such
agreement when made; and (ii) if . . .
15 Section 7 of the Labor Management Act provides
Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to refrain from
any or all such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in section 8 (a) (3).
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b) (2), which the Brotherhood is alleged to have violated, provides
that it shall be an unfair labor practice for a labor organization or its agents-
to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with
respect to whom membership in such organization has been denied or termi-
nated on some ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring or retaining
membership.
It will be recalled that Smith was billed by the Brotherhood for the amount of
support money to cover the monthly payments of August and September 1947,
that Smith tendered that amount plus the initiation fee, and that the latter sum
was returned to him upon the rejection of his applicaion for membership. There-
after he refused to make further monthly payments of "support money" and the
Brotherhood requested his.discharge pursuant to the invalid. Paragraph 3 (c) of
the contract. The factual situation is so patently covered by the language of Sec-
tion 8 (b) (2) that no discussion is necessary. I find that the Brotherhood has
caused the Company, an employer, to discriminate against an employee in viola-
tion of Section 8 (a) (3), and thereby the Brotherhood engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (2) of the Labor
Management Act.
The complaint also alleges that the Brotherhood, by requesting the Company to
discharge Smith, violated Section 8 (b) (1) (A) of the Labor Management Act.
I shall recommend that this allegation be dismissed on authority of H.° Milton
Newman, an individual, etc.10 In addition, the complaint alleges that the Company
and the Brotherhood, by "entering into the amended agreement" on June 27, 1947,
violated Section S (a) (1) and Section 8 (b) (1) (A) of the Labor Management
Act, respectively. Since the Wagner Act was in effect on June 27, 1947, and the
pertinent provisions of the Labor Management Act had not then become effective
as discussed in Section III, A, above, I shall recommend that the last stated alle-
gation be dismissed also. The complaint does not specifically allege that the Com-
pany, by entering into that agreement, violated Section 8 (1) of the Wagner Act,
and I believe it is unnecessary to determine whether such a finding could appro-
priately be made in this case because, in any event, there would be no alteration
in the remedy or recommendations below.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON CO MMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Company described 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
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act. I have
found that both Respondents were responsible for the discrimination against
Smith, and I shall recommend that the Company offer him immediate and full
16 85 NLRB 725.
PUBLIC SERVICE COMPANY OF COLORADO 435.
reinstatement to his former or a substantially equivalent position," without
prejudice to his seniority or other rights or privileges,'and that both Respondents,
jointly and severally, make Smith whole for any loss of pay he may have suffered
by reason of the discrimination against him by payment to him of a sum of money
equal to the amount which he normally would have earned as , wages from the date
of such discrimination, March 17, 1948, to the date of the Company' s offer of rein-
statement, less his net earnings during said period 18 In accord with the Newman
case above cited, I shall not attempt to adjust between the Respondents the
amount of back pay for which they are liable, but merely recommend that they
jointly and severally make Smith whole for any losses he has suffered by reason
of the discrimination against him.
Since Article II, Paragraph 3 (c) of the Respondents' amended agreement of
June 27, 1947, is no longer in existence, having been deleted with other portions of
Article II on June 14, 1948,,I shall not recommend that the Respondents cease and
desist from giving effect thereto. Moreover, although I have found that the Com-
pany violated Section 8. (a) (1), as well as Section 8 (a) (3), of the Act in dis-
charging Smith, there is no indication of a "settled purpose" on the part of that
Respondent to defeat generally the rights guaranteed to employees under Section
7 of the Act. Accordingly, I shall follow the doctrine of the Westinghouse Electric
case and omit the usual recommendation that the Company cease and desist from
the commission of any and all unfair labor practices proscribed by the Act, and
confine my recommendations to the cessation of the unfair labor practices found
and any like or related conduct."
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Public Service Company of Colorado constitute trade,
traffic, and commerce among the several States, within the meaning of Section 2
(6) and (7) of the Act.
2. Local No. B-1436, International Brotherhood of Electrical Workers A. F. L.,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Charles
G. Smith, and thereby encouraging membership in a labor organization and inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Public Service Company of Colorado has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and 8'(a) (3) of the Act.
4. By causing Public Service Company of Colorado to, discriminate against
an employee in violation of Section 8 (a) (3) of the Act, and to discriminate
against an employee with respect to whom membership was denied on some
ground other than his failure to tender the periodic dues and the initiation fee
uniformly required as a condition of acquiring membership, Local No. B-1436,
International Brotherhood of Electrical Workers, A. F. L., has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
171n accordance with the Board 's consistent interpretation of the term the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , and if such position is no longer in existence , then to a substantially equivalent
position ." See The Chase National Bank of the City of New York , etc., 65 NLRB 827.
" See Crossett Lumber Company , 8 NLRB 440.
in Westinghouse Electric Corporation, 80 NLRB 945.
859227-51-vol. 89-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices are unfair labor' practices affecting-
commerce within the meaning of Section 2 (6) and (7) of the Act..
6. Local No. B-1436, International Brotherhood of Electrical Workers,,
A. F. L., has not engaged in unfair labor practices within the meaning of.Section
8 (b) (1) (A) of the Act. -
7. Public Service Company of Colorado and Local No. B-1436, International
Brotherhood of Electrical Workers, A. F. L., by entering into the amended
agreement on June 27, 1947, did not engage in unfair labor practices within the
meaning of Section 8 (a) (1) and Section 8 (b) (1) (A) of the Act, respectively.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I
hereby recommend that :
1. Public Service Company of Colorado, and its officers, agents, successors and
assigns, shall:
(a) Cease and desist from encouraging membership in Local No. B-1436,
International Brotherhood of Electrical Workers, A. F. L., or in any other labor
organization of its employees, by discharging any of its employees or discriminat-
ing in any other manner in regard to their hire or tenure of employment, or any
term or condition of employment, unless obligated to do so by the terms of a valid
contract then existing between Public Service Company of Colorado and a labor
organization of its employees ;
(b) Take the following affirmative action, which I find will effectuate the
policies of the Act :
(1) Offer to Charles G. Smith immediate and full reinstatement to his former
or a substantially equivalent position without prejudice to his seniority or other
rights or privileges, in the manner set forth in "The remedy" ;
(2) Jointly and severally, with Local No. B-1436, International Brother-
hood of Electrical Workers, A. F. L., in the manner set forth in "The remedy,"
make whole Charles G. Smith for any loss of pay he has suffered by reason of
the discrimination against him ;
(3) Post at its places of business at Boulder, Colorado, copies of the notice
attached hereto as Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Seventeenth Region, shall, after being duly signed by
this Respondent, be posted by it 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 this Respondent to insure that said notices are not altered,
defaced or covered by any other material ; and
(4) Notify the Regional Director for the Seventeenth Region, in writing, within
ten (10) days from the receipt of this Intermediate Report what steps it has
taken to comply herewith.
2. Local No. B-1436, International Brotherhood of Electrical Workers, A. F. L.,
its officers, representatives and agents, shall:
(a) Cease and desist from causing or attempting to cause Public Service Com-
pany of Colorado, or any other employer, to discriminate against an employee
in violation of Section 8 (a) (3) of the Act or to discriminate against an em-
ployee with respect to whom membership in Local No. B-1436, International
Brotherhood of Electrical Workers, A. F. L., has been denied or terminated on
some ground other than his failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining membership ;
PTTBLIC SERVICE COMPANY OF COLORADO 437
(b) ' Take the following affirmative action, which I find will effectuate the,-,
polices of the Act :
(1) Jointly and severally, with Public Service Company of Colorado, in the
manner set forth in "The remedy," make whole Charles G. Smith for any loss,
of pay he has suffered by reason of the discrimination against him;
(2) Post in conspicuous places in its business office in Boulder, Colorado,
where notices to members are customarily posted, copies of the notice attached
hereto as Appendix B. Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall, after being duly signed by official
representatives of this Respondent, be posted by said Respondent immediately
upon receipt thereof and maintained by it for a period of sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by this Respondent to insure
that said notices are not altered, defaced, or covered by an other material;
(3) Mail to the Regional Director for the Seventeenth Region signed copies of
the notice attached hereto as Appendix B, for posting, the Employer willing, at
places. of business in Boulder, Colorado, of Public Service Company of Colorado,
in places where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director for the Seventeenth Region,
shall, after being signed as provided in paragraph 2 (b) (2) of these recom-
mendations, be forthwith returned to the Regional Director for said posting;
and
(4) Notify the Regional Director for the Seventeenth Region, in writing,
within ten (10) days from the receipt of this Intermediate Report, what steps
it has taken to comply herewith.
It is further recommended that, unless each of the Respondents within ten
(10) days from the receipt of this Intermediate Report, notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an Order requiring it to take the
action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges
that: (1) Local No. B-1436, International Brotherhood of Electrical Work-
ers, A. F. L., has engaged in unfair labor practices within the meaning of
Section 8(b) (1) (A) of the Act, and (2) Public Service Company of Colorado
and Local No. B-1436, International Brotherhood of Electrical Workers,
A. F. L., by entering into the amended agreement on June 27, 1947, engaged in
unfair labor practices within the meaning of Section 8 (a) (1) and 8 (b) (1)
(A) of the Act, respectively.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of serviceof the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such-exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and' any party may, within the same period, file an original and six copies of
a brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions
of the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 13th day of September 1949.
A. BRUCE HUNT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
• Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in LOCAL No. B-1436, INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., or in any other labor,
organization of our employees, by discharging any of our employees or dis-
criminating in any other manner in regard to their hire or tenure of employ-
went, or any term or condition of employment, unless obligated to do so by
the terms of a valid contract then existing between us and a labor organiza-
tion of our employees.
WE WILL offer to Charles G. Smith immediate and full reinstatement to
his former or a substantially equivalent position without prejudice to his
seniority or other rights or privileges, and WE WILL make Charles G. Smith
whole for any loss of pay he suffered as a result of the discrimination
against him.
All our employees are free to become, remain, or to refrain from becoming
or remaining, members in good standing of the above-named Union or any
other labor organization except to the extent that. this right may be effected
by an agreement in conformity with Section_8 (a) (3) of the Act.
PUBLIC SERVICE COMPANY OF COLORADO,
Employer.
By ----------------------------------
(Representative ) (Title)
'Dated --------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
PUBLIC SERVICE COMPANY OF COLORADO
APPENDIX B
NOTICE
439
To ALL MEMBERS OF LOCAL No. B-1436, INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, A. F. L., AND TO ALL EMPLOYEES OF PUBLIC SERVICE COMPANY
OF COLORADO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE wrLL NOT cause or attempt to cause Public Service Company of Colo-
rado, or any other employer, to discriminate against an employee in viola-
tion of Section 8 (a) (3) of the Act or to discriminate against an employee
with respect to whom membership in LOCAL No. B-1436, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., has been denied or termi-
nated on some ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring or
retaining membership.
WE wrr.L make Charles G. Smith whole for any loss of pay he suffered as
a result of the discrimination against him.
LOCAL No. B-1436, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS A. F. L.
By ----------------------------------------------
(Representative) (Title)
Dated -------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.