State Packing Co.

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1420 (N.L.R.B. 1962)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
processing , or otherwise dealing in the products of Speed -Line Manufacturing
Co., Inc., or to cease doing business with that Company.
WE WILL NOT threaten , coerce , or restrain General Insulation Company,
Asbestos Covering and Roofing Co., Inc ., The Walter G. Campbell Co., Incor-
porated , or any other employer or person engaged in commerce or in an industry
affecting commerce , with an object of forcing or requiring such employers or
any other .person to cease doing business with Speed-Line Manufacturing Co., Inc.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST
INSULATORS AND ASBESTOS WORKERS,
Labor Organization.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
LocAL 24 , INTERNATIONAL ASSOCIATION OF HEAT AND
FROST INSULATORS AND ASBESTOS WORKERS,
Labor Organization.
Dated---- --------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.
Employees or employers may communicate directly with the Board 's Regional
Office, Sixth Floor , 707 N . Calvert Street, Baltimore 2, Maryland , Telephone Num-
ber, Plaza 2-8460, if they have any question concerning this notice or compliance
with its provisions.
State Packing Company and Lawrence Mitchell
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 563 and Lawrence Mitchell. Cases
Nos. 21-CA.-3327 and 21-CB-1P326. July 18, 1962
SUPPLEMENTAL DECISION AND ORDER
On April 8, 1959, Trial Examiner Martin S. Bennett issued his
Intermediate Report and on February 15, 1960, a Supplemental Re-
port in the above entitled proceeding, finding that the Respondent
Company and Respondent Union violated Section 8(a) (1) and (3)
and Section 8 (b) (1) (A) and (2) of the Act, respectively, by invoking
their union-security contract against Lawrence Mitchell to deny him
continued employment. On August 4, 1960, the Board issued a Deci-
sion and Order' affirming the Trial Examiner's findings, but basing
its conclusion solely upon a holding that the union-security clause
invoked by the Respondents against Mitchell was not a lawful one
and could not, therefore, serve as a defense to the charges herein. The
Board, accordingly, did not reach other issues raised in the case.
Thereafter, in the course of enforcement proceedings, the Board
having specifically reversed the precedent upon which its earlier deci-
sion in this matter was predicated,2 the United States Court of-Appeals
2 128 NLRB 432.
2 New York State Electric & Gas Corporation , 135 NLRB 357, where the Board , Members
Rodgers and Leedom dissenting , held that the phrase "within 30 days" used in a union-
security clause does not render that clause unlawful. Accordingly , the Board, Member
Leedom deeming himself bound by the majority position In the cited case, hereby reverses
its prior holding In the instant case and finds that the union-security clause contained in
the contract Involved was a lawful one.
137 NLRB No. 151.
STATE PACKING COMPANY 1421
for the Ninth Circuit, on February 12, 1962, granted the Board's
motion to remand the case for reconsideration.
The Board has reconsidered the Intermediate Report, the Supple-
mental Intermediate Report, the exceptions and briefs, and the entire
record in this case, and, only to the extent consistent with our supple-
mental decision herein, adopts the Trial Examiner's findings.
The General Counsel urged an interpretation of the pertinent Sec-
tion 8(a) (3) proviso3 as requiring the establishment of an employ-
ment relationship which is continuing and regular in nature. Al-
though indicating that "a steady part-time employee or one who may
be an extra in name only" may have established an employment rela-
tionship of a continuing nature and thus be legally subjected to a
union-security clause, the Trial Examiner viewed the employment
relationship of an extra, here, as terminated at the close of each day
worked, and each new day's work as a new hire; and, because prior
employment would therefore not be considered in computing the
number of days worked for the purpose of applying a union-security
clause, he found the violations alleged. We reject this view.
The evidence discloses that Mitchell's employment relationship with
Respondent Company was well established, having continued for a
period of over 6 years. For a substantial period, prior to the time
immediately involved herein, Mitchell was employed as a regular full-
time employee. Thereafter he was employed by the Respondent Com-
pany as an extra with the frequency of such employment determined
by need and availability. In addition, he was similarly employed with
other employers similarly situated.' Over a substantial period of time,
therefore, Mitchell had an established employment relationship of a
continuing nature with Respondent Company, albeit his work was at
times intermittent, and he has enjoyed the benefits and acquired the
obligations under a contract which covered that employment
relationship.5
8 Section 8(a) (3) proviso , in relevant part, states : ". . . Nothing in this Act, . . . shall
preclude an employer from making an agreement with a labor organization . . . to re-
quire as a condition of employment membership therein on or after the thirtieth day follow-
ing the beginning of such employment. . . .
4 As the Intermediate Report indicates , the record discloses that the established prac-
tice of the industry in this locality was to fill fluctuating production needs from a pool of
experienced employees , of which Mitchell was a part , who appeared on the shipping docks
each morning.
r The evidence establishes that the contract involved was intended to and clearly did
provide for coverage of employees performing the work of an "extra." The contract itself
specifically establishes the wage rates , minimum hours , and certain other conditions of
employment of extras . Article 15 , thereof, declares that employees , "working by the
week, as well as those securing more than scale, shall receive all benefits of this agree-
ment." The contract and testimony establish that it is the "extra " who receives "more
than scale " While many contract provisions do not specifically refer to extras , nothing
in the language used excludes extras from coverage of the various provisions. The record
establishes that extras are employed to perform duties in any 1 of the 22 job classifica-
tions on the "kill" floor-the production workers' unit covered by the contract-and
when so engaged perform the same duties as "regular " employees in those respective
classifications but at a 10 -cent premium rate ; employers make health and welfare pay-
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Section 8(a) (3) proviso does not itself require that an employ-
ment relationship must be established on any particular basis, such
as regular, irregular, full-time, part-time, permanent, probationary,
continuing indefinite, or fixed-time definite, or any other specified
employment basis. Nor does it set forth a requisite number of hours
per day or number of days per week before an employment relation-
ship thereunder exists. It merely requires that such a relationship
exist and that its existence have had a duration of 30 days before the
employee may be subjected to a union-security clause.
As explicated in prior Board decisions 6 dealing with the 8(a) (3)
proviso, the stated purpose of Congress was to permit a union shop but
not a closed shop-thereby assuring nonunion applicants an oppor-
tunity for employment; at the same time giving a newly hired em-
ployee a reasonable period of time in which to determine whether he
desired to join the union in order to retain his job; and providing the
union a guarantee against free riders. Nothing in this manifold pur-
pose requires that a specified type of employment relationship be
established in order for the purpose to be satisfied.
Even in limiting union-security clauses to employment relationships
of 30 days' duration, there is no indication that a specified number of
hours worked is needed to satisfy the statutory duration requirement'
The Board thus gives the language used in the 8(a) (3) proviso its
normally accepted meaning and has treated the 30-day provision as
intending a calendar constant.'
In view of the foregoing, we find that Mitchell had established a
continuing employment relationship with Respondent Company; that
such relationship, although intermittent, was nevertheless an employ-
ment relationship within the meaning and contemplation of the Section
8 (a) (3) proviso; 9 and that, in that employment relationship, Mitchell
was covered by the collective-bargaining agreement in effect between
ments for those who work 80 hours per month ; If an extra works in both the week pre-
ceding and the week following a holiday, he receives the holiday pay, and extras may
and frequently do become regulars , as Mitchell' s own employment record discloses Thus,
the evidence establishes that extras were in fact part of the production unit and were
covered by the contract in effect.
8 See Union Starch & Refining Company, 87 NLRB 779, 784-785; Charles A. Krause
Milling Co , 97 NLRB 536, 539-542 , and the many references in those cases to the legis-
lative history of the provision.
7 Nothing in the statute or the legislative history suggests that the 30 days could be
completed in 15 days by working double time or that 60 days would be required if an
employee worked only half time
s Thus, in International Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America, Local 753 , CI.O (Ferro Stamping and Manufacturing Co.),
93 NLRB 1459 , the Board accepted a union-security clause requiring union membership-
"upon the completion of 22 days worked probationary period" as legal under the 8(a) (3)
proviso, where reference to extrinsic evidence established that the probationary employees
involved did not work steadily and, therefore , would not complete the 22 days worked'
before the passage of 30 calendar days.
e This is not to suggest that, without more, 1 day 's employment would subject such
employee , 30 days later , to an existing union -security clause. The question of when and'
whether an employment relationship has been established under Section 8 ( a)(3), is a-
factual one depending upon the circumstances in a given case.
STATE PACKING COMPANY 1423
Respondent Company and Respondent Union, including the union-
security provision thereof. Since the undisputed evidence discloses
that at the time the Respondents applied the union-security provision
to him, Mitchell had worked for Respondent Company in excess of 30
days whether calculated on a calendar or days worked basis, we find
that Respondent Company and Respondent Union did not thereby
violate Section 8(a) (3) and (1) and Section 8(b) (1) (A) and (2)
of the Act as respectively alleged in the complaint. Accordingly, we
shall dismiss this proceeding.
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
Unlike my colleagues, I would find that by invoking their union-
security contract against Lawrence Mitchell to deny him employment
the Respondents engaged in conduct violative of the Act. In its
original decision in this case,10 the Board found that the union-security
provision in question was unlawful and could not serve to justify
Respondents' treatment of Mitchell.
The clause pursuant to which Mitchell was refused employment
reads as follows :
All employees who are members of the Union on the date of the
execution of this Agreement shall remain members of the Union
in good standing for the duration of this contract, as a condition
of employment. All present employees who are not members of
the Union shall become members of the Union within thirty (30)
days after the execution of this Agreement, or within thirty (30)
days after the date of their employment, for the duration of this
Agreement, as a condition of employment. All new employees
hereafter hired by the Employer shall become members of the
Union within thirty (30) days from the date of their employment
for the duration of this Agreement, as a condition of employment.
It shall be the duty of the Employer to notify all new employees
that they must become members of the Union within thirty (30)
days after the date of their employment. Such notice shall be
delivered to the employee during the third week of his
employment.
The Board in its original decision, relying on Chi King Sales, Inc.,
126 NLRB 851, held that this provision was unlawful because it re-
quired union membership "within" 30 days and thereby failed to grant
the full 30-day grace period required by the Act. Thereafter, while
its order in this case was before the court of appeals for enforcement,
the Board, in another case, New York State Electric cC Gas Corpora-
tion, 135 NLRB 357, reversed its holding in the Chun King case and
10 128 NLRB '432 (Member Fanning not participating).
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided that the term "within 30 days from the date of employment"
satisfied the requirements of the Act. With Member Leedom, I dis-
sented in the New York State Electric case because I believed then, as
I do now, that the quoted phrase exceeded the limits of the Act. In
that dissent it was stated that :
Section 8(a) (3) of the Act authorizes at the most a contract
provision requiring union membership "on or after the thirtieth
day following the beginning" of employment. Contrary to our
colleagues' finding that "within" 30 days is equivalent to "on or
after" 30 days, we believe it patent that the two clauses are not
the same and that the clause requiring membership "within 30
days" does not accord employees the full 30-day grace period
guaranteed by the Act.
Also cited in support of this view was the decision of the Court of
Appeals for the Sixth Circuit in N.L.R.B. v. Industrial Rayon Cor-
poration and International Union of Operating Engineers, Local 600,
AFL-CIO, 297 F. 2d 62, where the court enforced a Board order based
on a finding that a union-security clause, using the same phrasing as
the clause in issue here, was unlawful.
In the instant case, the court of appeals has not yet had an op-
portunity to pass upon the issue of lawfulness of the union-security
provision in question because the Board, on its own motion, and by
reason of the majority opinion in the New York State Electric case,
-obtained an order remanding the matter to itself for further considera-
tion. Now my colleagues are accepting as lawful, without further
discussion, the union-security provision in the parties' contract. I
would adhere to the Board's original decision, and would find that the
union-security contract was invalid because it did not provide a full
30-day grace period for employees to join the Union.
However, even assuming for the purposes of discussion that the
union-security clause as written was lawful, I would still find that
Respondents violated the Act by demanding that Mitchell pay a rein-
statement fee to the Union before the Union would permit the Com-
pany to hire him. The record shows that for a period of some years
Mitchell had been employed sometimes as a regular, and sometimes
as a casual, employee by the Company and other similar employers in
the area. But, immediately prior to the time involved herein, in fact
during the entire year 1958 (the last year for which statistics appear
in the record), Mitchell worked for the Company only 32 days. Be-
tween the days worked for the Company and, perhaps, for other em-
ployers in the industry, Mitchell suffered frequent periods of unem-
ployment of varied duration. On these facts, the real issue is not
whether this intermittent employment was technically of such a nature
as to have obligated Mitchell to become a member of the Union, but,
rather whether the union-security provision could be enforced against
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1425
him so as to obligate him to pay dues for periods when he was thus
unemployed.
The principle that it is unlawful to demand, as a prehiring condi-
tion, the payment of dues accrued while the job applicant is unem-
ployed, or the payment of a reinstatement fee in lieu thereof, is not
novel but, rather, is accepted, traditional Board law. Thus, in Spector
Freight System, Inc.," the Board held that it is unlawful to charge a
reinstatement fee of an employee if his loss of good standing in the
union was based on his failure to pay dues during a period when he had
no obligation to maintain membership as a condition of employment.
This is precisely the situation presented here. Therefore, the union-
security provision in question could not lawfully be enforced against
Mitchell who, during the periods of his unemployment, had no job the
retention of which was conditioned upon union membership in good
standing.
Accordingly, I would find that the reinstatement fee was a penalty
which the Respondents unlawfully attempted to exact from Mitchell
in lieu of unpaid dues for a period during which he was not obligated
to pay dues pursuant to the union-security provision of the contract.
In short, my colleagues, in holding that Mitchell must pay dues or
reinstatement fee in lieu thereof for the periods during which he was
unemployed are, in effect, holding that Mitchell and other casual em-
ployees in like situations, are required to pay dues perpetually for
those times which, as casual employees, they do not work.
11123 NLRB 43. See also Local 140, Bedding, Curtain & Drapery Workers Union,
United Furniture Workers of America, CIO ( The Englander Company, Inc.), 109 NLRB 326.
Local Union 825, International Union of Operating Engineers,
AFL-CIO and Nichols Electric Company . Case No. 22-CD-52.
July 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the statute fol-
lowing a charge filed by Nichols Electric Company, herein called
Nichols, alleging a violation of Section 8 (b) (4) (D) by Local Union
825, International Union of Operating Engineers, AFL-CIO, herein
called Operating Engineers. Pursuant to notice, a regularly scheduled
hearing was held on June 22, 23, and 27 and on August 15, 1961,
before James T. Youngblood, hearing officer. All parties appeared
at the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bearing
on the issues. The rulings of the hearing officer made at the hearing
137 NLRB No. 154.
649856-63-vol. 137-91