Rutland Court Owners, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1943

46 N.L.R.B. 1040 (N.L.R.B. 1943)

In the Matter of RUTLAND COURT OWNERS, INC. and UNITED CONSTRUC-
TION WORKERS ORGANIZING COMMITTEE , LOCAL 120, BUILDING SERV-
ICEAND MAINTENANCE EMPLOYEES , AND BUILDING SERVICE EMPIAYEEs
INTERNATIONAL UNION, LOCAL 82
Case No. C-1639.-Decided January 13, 1943
Mr. J. Barrett Carter, of Washington, D. C., for the respondent.
Mr. Robert A. Wilson and Mr. Herbert Thatcher, of Washington,
D. C., for the American Federation of Labor.
Mr. Yelverton Cowherd, of Washington, D. C., for the United Mine
Workers of America.
Mr. Milton E. Harris, of counsel to the Board.
. SUPPLEMENTAL DECISION
This case which was the subject of our Decision and Order in
44 N. L. R. B., No. 112, is before the Board again on a motion for
reconsideration by the intervening union. Pursuant to this motion,
oral argument was granted at which counsel for the charging union,
the intervenor, and the respondent participated. After consideration
of the arguments of counsel, the Board has decided to adhere to its
original decision and the motion is therefore denied.
Since the observations of counsel indicate a misunderstanding with
regard to the principal holding in the case, a word or two of clarifica-
tion seems appropriate. Insofar as they are pertinent, the facts may
be briefly summarized :
The respondent, the owner of a cooperative apartment, had entered
into a closed-shop contract in 1938 with Local 82 of the Building Serv-
ice Employees Union, affiliated with the A. F. of L., covering its main-
tenance and service employees. It appears that there were seven
employees in this unit. Prior to the execution of the contract all seven
of them had designated the A. F. of L. union as their collective bar-
gaining representative. About a month before the expiration date of
the contract, the respondent opened negotiations with the union con-
cerning the terms and conditions of a new contract for the succeeding
calendar year. Some of the employees, apparently dissatisfied with
the representation they had received from this union, got in touch
with an organizer of a rival union. When the contract had only
46 N. L. R. B., No. 117.
1040
RUTLAND COURT OWNERS, INC. 1041
21/2 more weeks to run, six of these employees designated Local 120
of the Building Service and Maintenance Employees , affiliated with
the C . 1. 0., as their collective bargaining representative . The business
agent of the A. F. L. local, hearing of 'this, procured the discharge,
of one of the dissenting employees, telling the respondent that he had
not paid his dues and was creating dissension . He subsequently,
through the' assistance of the respondent , learned the identity of four
of the other dissidents and told the respondent that they would also
have to be discharged since they had""double crossed" him., At the
request of the business agent, new persons were then hired from the'
A. F. of L. local to replace the employees who had not redesignated
the A. F. of L . -The -newcomers gave authorizations to the business
agent and the, respondent entered into a closed-shop agreement ' f_or
the' ensuing year. -
_; Shortly' thereafter , charges were filed by the C.- I. O: union, upon
which a complaint was issued charging the respondent with a violation-
'of Section 8 (1), (3), and ( 5) of the Act . The Board- ultimately
dismissed so-much of the complaint as'related to Section 8"(5), but
found that the five employees had been discharged to discourage union
membership-a course of conduct forbidden by Section 8 (3).
In this ' proceeding ; it is now contended that in our decision we
erred in failing to attach ' due weight to the proviso in Section 8 (3)
giving effect to closed -shop agreements . In making ' this argument,
counsel do not say that the proviso was overlooked , for the text of the
decision 'expressly adverts to it, but rather that our construction of the
language casts doubt upon the legality , of closed -shop agreements by
holding that they can be deemed valid for only a portion of the., con-
tract period-and an indefinite portion at that.
A careful reading of our'decision . shows no basis for such an asser-'
tion. Our decision, like , the decisions of all courts and administrative
agencies , was based upon the facts before us. We found that, upon
representations of the union 's business agent that certain employees
did' not intend ' to maintain their membership beyond the expiration
of the contract , the respondent replaced them with persons willing to
grant the contracting union authority to represent them in negotia-
tions for the next contract . Neither the business agent nor the re-
spondent contended that these employees had refused to maintain their
membership in the union during the entire term of the contract. They
had merely expressed their intention to designate a new representative
for future bargaining after the present contract expired. We did not
hold that employees were free . to withdraw from a , uiiiori ;having a
closed -shop agreement a month or, 6 weeks before the agreement ex-,
pired. We did' , liold that employees who attempt to retain - their mem-
bership in the contracting union during the life of the contract may
504086-43-vol 46-66 1
1042 DECISIONS, OF, NATIONAL LABOR RELATIONS BOARD
not be foreclosed from doing.so for-the purpose of justifying their
discharge under the contract merely because they have designated a
new representative for future bargaining. To hold otherwise would
mean that an employer and a union official, acting in concert, could
maintain one labor organization in perpetuity as the bargaining repre-
sentative by the simple device of expelling any employees who wished
to have a different representative when the question of the renewal
-of the contract arose.
The proviso relating to the closed shop is not a severable and sep-
arate portion of the Act. . It must be construed in the light of the
statutory statement of policy and -the general provisions of the Act,
and if any, seeming conflicts arise they should be resolved so as, to
give proper effect to the salient provisions of the Act. It is a well
-settled principle of statutory construction that in a remedial statute.
a broad effect should be given the general provisions and a narrow con-
struction placed upon the limitations." The express purpose of the
Act is to insure employees of their own right of self-organization and
a free choice of representatives. We cannot allow. the declared inten-
tion of Congress to be evaded by permitting an employer and a union
thus to combine' to preclude the employees from expressing their choice.
The proviso in Section 8 (3) cannot therefore be considered as an
;instrument for depriving employees- of their statutory, right, to, select,
a-pother representative for a. period succeeding the term embraced
by the closed-shop contract. We recognize the force of the arguments,
in favor of stability, but as we indicated previously the stability in-
tended by the Act is not that involved in perennial suppression of the
employee's will.
At the rehearing, counsel for the respondent raised- two objections
to the Decision and -Order. The first was on, jurisdictional grounds,
-the contention being that respondent, relying on the Stafford case,2
was not engaged in trade or commerce within the meaning of the Act.
-This point was discussed at some length in the decision, and we believe
-that its jurisdictional argument was foreclosed both by decisions of
the Supreme Court 3 and the Court of Appeals for the District of
Columbia.' The other contention was that the respondent acted in
good faith throughout and was really a victim of a jurisdictional con-
test between two unions, and therefore should not be penalized for
seeking to conform to what it conceived to be the law.
While we do not question the respondent's good faith, we do not.
feel that the situation with which it was confronted required it to pro-
0
Fleming v. Hawkeye Pearl Button Co, et at., 113 F. (2d) 52 (C. C. A. 8).
2 Stafford Owners, Inc V. U. S., 39'F. (2d) 743.
3 Associated Press and American Newspaper Guild v. N. L. R. B., 301 U. S. 103.
U. S. v: A. M. A., 110 F. (2d) 703 (App. D. C.), cert. den. 310 U. S. 644. - ,
RUTLAND COURT OWNERS, INC. 1043
ceed at its own risk. Under the amended regulations in effect at the
time the dispute arose (and which are still in effect), an employer faced
with mutually contradictory claims of representation on' the part of
two or more labor organizations may file a petition with this Board
to have-the question of representation settled. The record shows that
the respondent's counsel did advert to this possibility, but for some
reason or other did not avail himself of this administrative solution
of his difficulties.
I
- '
We have therefore concluded that there was no error in the Decision
and Order of September 29, 1942, and it accordingly remains in full
force and effect.
'Mx. WM. M. LEisERSON took no part in the- reconsideration of the
.Above Supplemental Decision.