National Lead Co,

National Labor Relations Board - Board Decisions

Aug 28, 1957

118 N.L.R.B. 1240 (N.L.R.B. 1957)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Lead Company, Titanium Division and Robert Brown
Chemical Workers' Basic Union , Local No. 1744, affiliated with
the Brotherhood of Painters , Decorators and Paperhangers of
America, AFL-CIO and Robert Brown . Cases Nos. 14-CA-
1466 (B) and 14-CB-370 (B). August 28, 1957
DECISION AND ORDER
On January 17, 1957, Trial Examiner Reeves R. Hilton 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 therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions. The Board accordingly
adopts the findings of the Trial Examiner only to the extent that they
are consistent with this Decision and Order.
1. We do not agree with the Trial Examiner's finding that the dis-
charge of Robert Brown was unlawful.
Brown was discharged by the Respondent Employer at the request
of the Respondent Union pursuant to the terms of the union-security
agreement in force between the Respondents, because of his nonpay-
ment of periodic union dues. The Trial Examiner found that the
union-security provision was not a defense to the discharge because,
although the Respondent Union was in compliance with the filing re-
quirements of Section 9 (f), (g), and (h) of the Act at the time the
contract was signed, it was. not in such compliance on the day of
Brown's discharge.
The proviso to Section 8 (a) (3) of the Act 1 dealing with the con-
ditions under which a union-security clause is lawful provides in
relevant part as follows :
Provided, That nothing in this Act . . . shall preclude an em-
ployer from making an agreement with a labor organization .. .
to require as a condition of employment membership therein .. .
(i) if such labor organization is the representative of the em-
ployees . . . and has at the time the ' agreement was made or
within the preceding twelve months received from the Board a
notice of compliance with section 9 (f), (g), (h).... [Emphasis
supplied.]
1 As amended by Public Law 189, 82d Conga , 1st sess., Oct. 21, 1951.
118 NLRB No. 164.
NATIONAL LEAD COMPANY 1241
The statutory language is clear and unambiguous. It provides
simply for compliance "at the time the agreement was made" and not
for compliance at the time of discharge pursuant to a union-security
clause or for compliance during every day the contract is in existence z
Moreover, there is nothing in the legislative history of the 1951
amendment which would indicate that Congress did not intend the
words of the amendment to have their ordinary meaning, or more
specifically, that they should have the meaning attributed to them
by the Trial Examiner.3 We find, therefore, that as the Respondent
Union was in compliance with the requirements of Section 9 (f), (g),
and (h) of the Act at the time the agreement was made, and the
union-security clause otherwise met the requirements of the proviso
to Section 8 (a) (3), the clause and the discharge thereunder were
both lawful.
2. The Trial Examiner also found that the union-security agree-
ment executed on June 6, 1956, subsequent to the discharge of Brown,
was unlawful because it was made retroactive to a date on which
the Respondent Union was not in compliance with Section 9 (f),
(g), and (h), although it was in compliance on the date of execution of
the contract. We do not agree with this finding of the Trial Examiner.
On June 6, 1956, the Respondent executed a new collective-bargain-
ing agreement retroactive to March 14, 1956, the date of expiration of
their previous contract. This conformed with past practice and ap-
parently was done in order to give the employees a retroactive wage
increase. On June 6, the Respondent Union was in compliance with
the Act's filing requirements. However, on March 14, the date to which
the contract was made retroactive, the Respondent Union was not in
compliance, its previous compliance having lapsed temporarily and
not having been renewed until 2 weeks later on March 27, 1956. Al-
though the retroactive enforcement of a union-security clause is un-
lawful,' there was no attempt at such enforcement in this case. The
mere fact that,a contract containing a union-security clause is made
retroactive to a date when a Union's compliance with,Section 9 (f),
(g), and (h) had temporarily lapsed is not sufficient to make the union-
security clause unlawful, where the Union meets the compliance re-
quirements when the contract is made.
We have found, contrary to the Trial Examiner, that the Respond-
ents have not violated any section of the Act. Accordingly, we shall
dismiss the complaint in its entirety.
[The Board dismissed the complaints.]
'Local 833, International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-AFL-CIO) (Paper Makers Importing Co., Inc.), 116
NLRB 267, 272-273.
3 S. Rept. 646 , 82d Cong ., 1st sess . ( 1951 ) ; H. Rept. 182, 82d Cong ., 1st sess. ( 1951).
" General American Aerocoach , etc., 90 NLRB 239, 240.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges duly filed and served, the General Counsel of the National
Labor Relations Board,' pursuant to Section 10 (b) of the Labor-Management Rela-
tions Act, 61 Stat. 136 (herein called the Act), issued complaints dated September
27, 1956, against National Lead Company, Titanium Division, herein called the
Respondent Company or the Company, and Chemical Workers' Basic Union, Local
No. 1744, affiliated with the Brotherhood of Painters, Decorators and Paperhangers
of America, AFL-CIO, herein called the. Respondent Union or the Union, respec-
tively. On the same date the Regional Director issued an order consolidating the
cases for hearing. In substance the complaints allege that the Respondent Union by
causing the Company to discharge an employee under an illegal union-security
clause in a collective-bargaining agreement, thereby violated Section 8 (b) (2)
and (1) (A) of the Act, and the Respondent Company in effectuating the discharge
thereby violated Section 8 (a) (3) and (1) thereof. The complaints further allege
that the Respondents by making their collective-bargaining agreement effective
retroactive to a date when the Respondent Union was not in compliance with the
filing and non-Communist affidavit provisions of the Act, and by maintaining and
enforcing the union-security clause in the agreement at times when the Respondent
Union was not in compliance for the above-mentioned reasons, the Respondent
Union thereby violated Section 8 (b) (1) (A) and (2) of the Act, and the Respondent
Company violated Section 8 (a) (1) and (3) thereof. The Respondents filed separate
answers in which they admitted generally the allegations of the complaints, but
denied that they had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held before the Trial Examiner in St. Louis,
Missouri, on November 15, 1956. All the parties were represented by counsel at
the hearing and were afforded opportunity to be heard, to introduce relevant evi-
dence, to present argument, and to file briefs. Thereafter the General Counsel filed
a brief which has been duly considered.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT COMPANY'S BUSINESS
On the basis of the pleadings and stipulation by the Respondent Union, the Trial
Examiner finds that the Respondent Company, a New Jersey corporation, maintains
its principal office in St. Louis, Missouri, and operates plants and warehouses in
various States of the United States, including a Titanium -Division in St. Louis,
Missouri, where it is engaged in the processing, sale, and distribution of titanium
pigments. For the 12-month period preceding the issuance of the complaint, the
Respondent Company's purchases of raw materials from outside the State of Missouri
amounted to more than $500,000, and sales of its products were valued in excess
of $1,000,000, of which more than 90 percent represented sales to customers out-
side the State of Missouri. The Trial Examiner finds that the Respondent Company
is engaged in commerce as defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The issues presented are:
1. Whether the Respondent Company in discharging an employee upon demand
by the Respondent Union pursuant to a union-shop provision in their agreement,
at a time when the Union for the preceding 19 months had not been in compliance
with Section 9 (f), (g), and (h), thereby violated Section 8 (a) (3) and (1) and
the Union violated Section 8 (b) (2) and (1) of the Act, respectively.
2. Whether the Respondent Company and the Respondent Union by entering into
an agreement containing a union-shop clause when the Respondent Union was in
compliance with Section 9 (f), (g), and (h), but made the contract retroactive to
a date when the Respondent Union was not in compliance with those provisions and
I The General Counsel and his staff attorney appearing for him at the hearing are re-
ferred to as the General Counsel, and the National Labor Relations Board, as the Board.
NATIONAL LEAD COMPANY 1243
enforced and maintained the union-shop clause subsequent to its execution when the
Respondent Union was not in compliance with the foregoing provisions, thereby
violated Section 8 (a) (3) and (1) and Section 8 (b) (2) and (1) (A) of the Act,
respectively.
A. The collective-bargaining agreements between the Company and the Union; the
compliance status of the Union during the periods covered by the agreements
At the hearing the General Counsel presented a written stipulation signed by
counsel for each of the parties setting forth various agreements executed between
the Company and the Union and the compliance or noncompliance on the part of the
Union with the requirements of Section 9 (f), (g), and (h) of the Act. The Trial
Examiner received the stipulation in evidence and on the basis of the facts contained
therein makes the following findings of fact.
At the outset, it is well to point out that the national union, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL-CIO, has been in com-
pliance with the foregoing provisions of the Act at all times material, consequently,
the findings and conclusions in this matter relate only to the course of action taken
by the local union, or as previously stated herein referred to as the Respondent
Union or the Union.
On July 11, 1951, the Union filed the necessary documents with the Regional
Office for the Fourteenth Region (St. Louis, Missouri) which brought it into com-
pliance with the Act until June 30, 1952.
On March 10, 1952, the Company and the Union, following a certification by the
Board, executed a collective-bargaining agreement covering the production and
maintenance employees at the St. Louis plant, which agreement contained a union-
security clause and was effective from May 14, 1952, to March 13, 1954.
On June 30, 1952, the Union allowed its compliance with the Act to lapse because
it failed to file the necessary documents, and it remained thus until January 19, 1953,
when it again came into compliance, effective to June 30, 1953. On the latter date
the Union's compliance lapsed for the same reason and it was not until December 29,
1953, that it regained compliance status, this time effective to June 30, 1954, insofar as
it pertained to Section 9 (f) and (g) and to August 6, 1954, with respect to Section
9 On April 29, 1954, the Company and the Union executed a new agreement, with
a union-security provision, which was effective from March 14, 1954, to March 13,
1956.
On June 30 and August 6, 1954, the Union permitted its compliance with Section
9 (f) and (g) and Section 9 (h), respectively, to again lapse. The Union did nothing
to restore its prior status until March 27, 1956, when it once more came into com-
pliance with Section 9 (f) and (g), effective to June 30, 1956; and with Section
9 (h), effective to December 1, 1956.
On June 6, 1956, the Company and the Union executed another agreement, also
containing a union-security clause, which became effective March 14, 1956, and
terminates March 13, 1958.
The Union permitted its compliance with the provisions of Section 9 (f) and (g)
to lapse on June 30, 1956, by reason of its failure to file the documents required
under those sections. However, as of the date of the hearing the Union was
still in compliance with Section 9 (h) of the Act.
B. The discharge of Robert Brown
The parties stipulated that Brown was first employed by the Company about
August 16, 1946, and worked continuously until February 10, 1956, when he was
discharged. Admittedly, Brown did not pay his union dues for the month of
October 1955, in the amount of $2.50. About January 16, 1956, Brown received
written notice of his delinquency from the Union and when he still failed or refused
to pay his dues the Union, on February 10, notified the Company and requested his
dismissal under the union-security provision of the agreement. The Company com-
plied with the Union's request and discharged Brown that day for his refusal to pay
union dues. Brown has never been reinstated.
The agreement at that time provided:
The Company agrees that every employee, who is included in the unit of
employees covered by this Agreement, shall, as a condition of employment, be or
become a member of the Union on the thirty-first (31st) day following the
effective date of this union-shop clause or following the date of his employment,
whichever is the later, and shall maintain such membership in good standing
during the life of this Agreement.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
1. The union-security provisions of Section 8 (a) (3) of the Act
In considering the rewriting of Section 8 (3) of the Wagner Act, Congress de-
termined that the "closed -shop form of agreement allowed thereunder should be
abolished . Accordingly , both the House and the Senate adopted amendments de-
signed to eliminate the closed shop , but to permit the union shop or maintenance
of membership form of union security under certain terms and conditions. How-
ever, the bills differed in the procedures required in order to obtain the permissible
form of union security.
Thus, the House bill, H. R . 3020, in this respect , provided , principally (Section
9 (g)) that a labor organization as a condition to being entitled to have the allowable
union-security provision (Section 8 (d) (4)) carried out by the employer must file
a petition for a union -shop election and state that the agreement had not been
secured, either directly or indirectly, by a strike or a threat thereof. The section
further conditioned validity of the union -security provision upon a majority of all
the employees in the unit voting in favor thereof, and an election authorizing such
a provision "shall be . . . effective only for a period which does not extend beyond
the termination of the agreement in which such provisions are included , or beyond
2 years from the date on which such agreement was executed , whichever first occurs."
The Senate passed its own substituted text of the House bill ,2 which was then
referred to joint conference and was thereafter enacted as the Labor-Management
Relations Act of 1947.
Section 8 (a) (3) of the original amendment to Section 8 (3) of the Wagner
Act provided:
That nothing in this Act . . . shall preclude an employer from making an
agreement with a labor organization . to require as a condition of em-
ployment membership therein on or after the thirtieth day following the be-
ginning 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, following the most recent
election held as provided in section 9 (e) the Board shall have certified that at
least a majority of the employees eligible to vote in such election have voted
to authorize such labor organization to make such an agreement. .. .
Section 9 (e) (1) outlined the procedure a labor organization must follow to
obtain authorization for a union-security contract.
Section 9 (e) (2) provided that upon the filing with the- Board by a stated
number of employees, in the unit covered by an agreement made in pursuance to
Section 8 (a) (3) (ii), of a petition alleging they desire that such authority be
rescinded, the Board shall take a secret ballot of the employees in such unit, and
certify the results to the labor organization and the employer.
Section 9 (e) (3) further provided that:
No election shall be conducted pursuant to this subsection in any bargaining
unit or any subdivision within which, in the preceding twelve-month period,
a valid election shall have been held.
The House Conference Report,3 after referring to the original provisions of
the House bill relating to the effective period of a union-authority election
(supra ), stated;
Under the Senate amendment, once this authorization had been given, it con-
tinued in effect until, upon a secret ballot conducted as a result of the filing
of a "deauthorization" petition, a majority of the employees eligible to vote had
not voted in favor of the authorization. As in the case of the representation
elections , the Senate amendment in section 9 (e) provided that no election in
respect of the union shop could be conducted in any bargaining unit or any
subdivision thereof within which, in the preceding 12-month period, a valid
election had been held.
Congress placed further restrictions upon the privilege of a labor organization
to enter into an agreement with an employer providing for the type of union-
security allowed, in that, through the enactment of Section 9 (f), (g), and (h) it
S. 1126 , as reported and amended prior to its adoption.
3 To accompany 11. R. 3020, as passed by the Senate, Rept. 510, 80th Cong., 1st sess.,
pp. 50-51.
NATIONAL LEAD COMPANY 1245
prohibited the Board, inter alia, from entertaining any petition filed under Section
9 (e) (1), unless the labor organization had complied with the requirements
specified in each of those sections. Briefly, a labor organization to be eligible to
file an authorization petition was required, under Section 9 (f), to file certain data
with the Secretary of Labor and under Section 9 (g) to file annual reports bring-
ing the information up to date, including yearly financial reports; Section 9 (h)
required each of its officers, both local and national, to file non-Communist affi-
davits with the Board, executed contemporaneously with the filing of the petition
or within the preceding 12-month period. The Supreme Court, in N. L. R. B. v.
Thomas W. Dant et al., 344 U. S. 375, 380, held, "the absence of such affidavits kept
the Board from entertaining a petition for a union-shop election under Section
9 (e) (1)."
Apart from the provision of H. R. 3020, fixing the term of a union-security au-
thorization for the period of the agreement but, in any event, not to exceed 2 years,
which was rejected by the Senate and the Joint Conferees, there was no attempt
made in either the debates or the amendments as passed, to place a specific limitation
upon the effective period of such an authorization. However, Congress, in Section 9
(c) (3), expressly stated that no election should be directed in any bargaining
unit or subdivision thereof where, in the preceding 12-month period, a valid election
had been held and in Section 9 (e) (3) applied the same prohibition to union
authorization elections. The Board stated this proscription "amounts in part to a
codification of the Board's 1-year certification rule" and construed the 2 sections
as forbidding "either two union-shop elections within 12 months or an election
within 12 months to rescind the authority granted in a union-shop election (but)
not to preclude a union-shop election at anytime after a representation petition." 4
As might be expected the Board, in a number of representation cases, was con-
fronted with the problem of the lapse of compliance of one of the participating
unions. The Board in its Annual Report apprised Congress of this problem and of
its policy and decisions in such cases.5 Thus, where the petitioner's compliance
lapsed prior to the hearing and was not renewed, the Board sustained the dismissal
of the petition, although the petitioner subsequently renewed its compliance. In
other instances where the petitioners' compliance status lapsed after the hearing, the
Board's direction of election was conditioned upon the union's renewal of its
compliance status within 2 weeks. Again, where the intervenor's compliance status
had lapsed after an election, the Board directed that a majority vote in favor of the
intervenor should not be certified pending the renewal of its compliance.
The Trial Examiner has no difficulty in reaching the conclusion that Congress
not only restricted the union and the employer as to the form of union-security
contract permitted, but conditioned such an agreement upon approval of a
majority of all the employees in the unit, as expressed in a mandatory union-shop
election. As a further condition, and in order to be eligible to petition for
such an election, Congress declared the union must be in full compliance with
the filing and non-Communist affidavit provisions of the Act. However, the Act
does not explicitly state the effective duration of a valid certification authorizing
the execution of a union-security agreement, for the House provision in this respect
was rejected. Indeed, the Act simply prohibited the Board from conducting a
second union-shop election within a 1-year period and from entertaining a petition
to revoke the union's authority within the same period. Therefore, it seems reason-
able to infer that Congress never intended that a certification pursuant to a union-
shop election was to be accorded greater force or duration than that given a repre-
sentation certification and, in line with well-established Board policy and decisions,
was certainly not to be effective for more than 1 year. This conclusion receives
further support from the fact that Congress required labor organizations to file
annual reports and their officers to submit non-Communist affidavits yearly to the
Board.
The procedures and qualifications thus imposed by Congress upon unions and
employers as conditions precedent to the execution of a valid union-shop contract
plainly defined the effective date of such a provision as of the date of an authoriza-
tion certification and the status of the union prior to that date is immaterial in this
respect. It follows that the union's certification and effective date of the union-shop
provision run concurrently and, as the union is required to comply annually with
Section 9 (f), (g), and (h), the Trial Examiner is of the opinion that the latter
provisions are clearly a limitation upon the validity of the certification 'beyond that
point. Thereafter, since the union had to be in compliance with the foregoing
i Thirteenth Annual Report , for the fiscal year ending Tune 30, 1 948, pp . 31. 44.
5 T'irteenth Annual Report , for the fiscal year ending June 30, 1950, p. 26.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions in order to have the Board entertain an authorization petition, the ques-
tion of compliance, seemingly, presented no serious problem; at least the Trial
Examiner has been unable to find any decisions on this precise issue.
2. The 1951 amendment
In October 1951, Congress amended the Act by eliminating the requirements
of Section 8 (a) (3) and Section 9 (e) (1) and (2) pertaining to the mandatory
union-shop election as a prerequisite to the execution of a valid union-security
agreement.6
Section 8 (a) (3) as thus amended permits an employer to enter into a union-
security agreement with a union provided the union is the representative of the
employees in an appropriate unit
and has at the time the agreement was made or within the preceding twelve
months received from the Board a notice of compliance with sections 9 (f),
(g), and (h), and (ii) unless following an election held as provided in sec-
tion 9 (e) within one year preceding the effective date of such agreement, the
Board shall have certified that at least a majority of the employees eligible
to vote in such election have voted to rescind the authority of such labor or-
ganization to make such an agreement.
Section 9 (e) was amended by adding a new provision, Section 9 (e) (I), providing
for the filing of a deauthorization petition and an election thereunder, and Section 9
(e) (2) providing that no such election shall be conducted where a valid election
was held in the preceding 12 months.
The Senate Committee Report,7 after expressly declaring its intention to discon-
tinue the expensive, burdensome, and unnecessary mandatory election procedure,
stated:
The bill provides, however, that a labor organization shall not be authorized
to conclude a union-shop agreement, unless within the preceding 12-month
period, it has received notice from the Board that it is in full compliance with
section 9 (f), (g), and (h), so that at the time the union-shop agreement be-
comes effective, the union is eligible to invoke the Board's processes under sec-
tion 9 (f), (g), and (h). The provision for such notice affords a simple means
of enabling all parties concerned to know conclusively whether the require-
ments of Section 9 (f), (g), and (h) have been met.
The Report further stated, "the bill continues to safeguard employees against sub-
jection to union shop agreements which a majority disapproves" by enabling the
employees to revoke the union's authority to make such an agreement through pro-
cedures set forth in Section 9 (e).
In discussing the amendment in its annual report to Congress,8 the Board stated
that while the amendment eliminated the requirement of a union-shop authorization
poll before a union shop could be established legally
the amendments did not otherwise relax the restrictions placed on union-shop
agreements by the 1947 amendments. Unions making such agreements still
must comply with the non-Communist affidavit and filing requirements of the
act. The 1951 amendments further retain the provision for polls to determine
whether employees wish to revoke the authority of a bargaining agent to make
a union-shop agreement.
The specific language of the amendment, plus its purpose as expressed in the
congressional reports and the Board's discussion of the amendement, warrants but
one conclusion and that is, that Congress intended merely to remove the require-
ment of a union-shop election as a condition precedent to the execution of a lawful
union-shop agreement and did not thereby change or modify other obligations and
restrictions imposed upon unions in this respect. Plainly, there is nothing in the
6 Public Law 189, 82d Cong., 1st sess., approved October 21, 1951. The amendment
also provided for preserving certain certifications and union-shop agreements which were
Jeopardized by the Supreme Court's interpretation of the non-Communist affidavit pro-
visions in N. L. It. B. V. Highland Park Manufacturing Co., 341 U. S. 322.
.r
Senate Report No. 646, on S. 1959, 82d Cong., 7st sess., August 16, 1951. The House
Report, No. 1082, is practically identical to the Senate Report.
Sixteenth Annual Report for the fiscal year ending June 30, 1951. p. 13. The report
also discloses that during 4 years and 2 months, from 1947 to 1951, the Board conducted
46,119 union-shop authorization polls and in 44,795 of these polls, or 97 percent, the
employees authorized negotiation of union-shop agreements (p. 10).
NATIONAL LEAD COMPANY 1247
amendment to suggest that Congress intended that a notification of compliance with
Section 9 (f), (g), and (h) should afford the union privileges greater in scope and
duration than those flowing from a certification pursuant to the union-shop refer-
endum. Again, the amendment continues to safeguard employees against subjection
to union-shop agreements which a majority disapproves through deauthorization
procedures. In passing upon this phase of the amendment the Board, in Great
Atlantic & Pacific Tea Company, 100 NLRB 1494, stated that although a union
has "presumptive authority" to execute a union-security agreement, an unwilling
majority covered by the agreement may escape its terms through the opportunity
afforded by Section 9 (e) (1) for an affirmative deauthorization vote. In that
case the union and employer executed a 2-year union-security contract in October
1951, and on November 1, 1951, a deauthorization petition was filed. The Board
held that the normal contract-bar principles were not applicable in cases of this
character and the contract was no bar to the proceeding. The union also contended
that the effect of a deauthorization vote, assuming a majority, should be prospective
only and the union-security agreement should be held effective for the remainder
of its term. The Board rejected this contention and commented that Congress did
not intend that the employees' expression, either affirmative or negative, should be
postponed until the termination of the agreement, for the reason that "the union-
security clause was valid subject to a condition subsequent." In so holding the
Board recognized "the possible unstabilizing effect of voiding the union-security
portion of a contract in mid-term. But the Board's function here is to construe
the policy of Congress as made, not to remake it." 9
Accordingly the Trial Examiner concludes that Congress did not intend a notifica-
tion of compliance to be valid indefinitely or as a license to ignore the filing 're-
quirements and non-Communist affidavit provisions of the Act.
In brief, the General Counsel argues that Congress intended permanent compliance
with Section 9 (f), (g), and (h) as a prerequisite to the execution and enforcement
of a union-shop contract, while counsel for the Respondents take the position that
if Congress had so intended it would have made provision for continued compliance
as a condition to enforcement of a union-security agreement in the amendment.
The Trial Examiner is of the opinion that Congress contemplated continuous com-
pliance on the part of a union with the filing and non-Communist affidavit provi-
sions in order to legally maintain and enforce the terms of a union-security agreement.
To state otherwise would completely defeat the congressional purpose of those pro-
visions, particularly Section 9 (h), which purpose the Supreme Court, in the High-
land Park case (supra), held (p. 325) :
. . . was to "wholly eradicate and bar from leadership in the American labor
movement, at each and every level, adherents to the Communist party and
believers in the unconstitutional overthrow of our Government."
Thus, Respondents' theory, if accepted, would relieve the Union of any responsibil-
ity with its obligations under Section 9 (h), once it had received a notification, and
thereby place the employees covered by the agreement in jeopardy of being con-
trolled by the very type of officials Congress planned to eliminate from union lead-
ership. It is difficult to imagine that Congress by simply providing unions with a
quick and easy means of effectuating union-security agreements contemplated, for
all practical purposes, the nullification or repeal of the provisions of Section 9 (h)
of the Act.
This conclusion is fully supported by the remarks of Senator Humphrey, one of
the sponsors of the amendment, during the course of Senate consideration of the
bill. When Senator Mundt inquired if the amendment would make it easier for
unions to meet the requirements for making union-shop agreements without their
officers executing non-Communist affidavits, Senator Humphrey replied:
It does not. The non-Communist oath or affidavit requirement is a part of
the Taft-Hartley law which must be abided by; and this measure would not
in any way affect the necessity and legal obligation of every union official to
sign the non-Communist affidavit.10
The Board has long held that lapse of compliance by a union not only prevents
the investigation of a petition and the issuance of a complaint, but absent a con-
tractual interest, precludes intervention in a representation proceeding and the re-
fusal of the Board to permit its name on the 'ballot in an election conducted in such
a proceeding."
O Cited with approval in Truth Tool Company, 111 NLRB 642, 643.
In Congressional Record, Senate, August 21, 1951, p. 10674.
11 Fifteenth Annual Report for the fiscal year ending June 30, 1950, pp. 26-27.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the Board has not occasion to pass directly upon the effect of a union's
failure to comply with Section 9 (f), (g), and (h) throughout the period of a union-
shop agreement, it has indicated that the Act contemplates continuous compliance
in order to maintain the validity of such an agreement. Thus, in Tacoma Harbor
Lumber and Timber Co., 108 NLRB 912, 915, the Board in finding that the union
and the employer had enforced an illegal union-shop contract, stated:
Neither at the time of Welcome's discharge, nor at any time before, was the
Union in compliance with Section 9 (f), (g), or (h) of the amended Act.
Again, in Stemar Company, 116 NLRB 578, the intervening union contended that
its existing union-shop contract was a bar to the petition. The agreement was
executed and maintained under the following circumstances. On March 30, 1954,
the parties entered into the agreement for a period of 1 year with automatic renewal
from year to year, unless either party gives notice of a desire for changes at least 60
days before the annual expiration. No such notice was given and the contract was
renewed automatically to March 30, 1957. The union was in compliance with
Section 9 (f), (g), and (h) when the contract was executed on March 30, 1954,
but its compliance lapsed on June 12, 1954, and was not reinstated until June 7, 1956,
after the date the contract as automatically renewed in 1956 became effective and
after the filing of the decertification petition. The Board, in passing upon the
contract-bar claim, stated:
A contract containing an automatic renewal provision is "made" within the
meaning of Section 8 (a) (3) each time that the contract is renewed for an
additional contract period. This interpretation obviously accords with the
intention of Congress, namely, that labor organizations should be encouraged
to achieve and to renew compliance at regular intervals, thus insuring the
permanent removal of Communists from official positions within labor
organizations. As the Union did not satisfy the compliance requirements of
Section 9 (f), (g), and (h) during the relevant period preceding the 1956
renewal of the 1954 agreement, we find that the contract as renewed is not a
bar to the present petition.
It is true that the amendment states that the employer may execute a union-security
agreement with a union if, inter alia, the union has received a notice of compliance
from the Board within the preceding 12 months. Again, it is true there may be
some inconsistency in the wording concerning notification of compliance within the
preceding 12 months in the 1951 amendment and the language of the 1947 amend-
ments concerning the certification issued thereunder, which ran concurrently with
the effective date of the union-shop provision. However, since the primary purpose
of the 1951 amendment was merely to remove the expensive and burdensome union-
authority election procedure, and nothing more, it is incongruous to believe that
Congress intended that a union need only be in compliance with the Act at the time
of the actual signing of the agreement. If this rationale be accepted, a union could
receive a notification 11 months before it signed a union-security agreement, allow
its compliance to lapse 1 month later and still enforce its agreement for the remainder
of the term, perhaps from 2 to 5 years. In view of the legislative history of the
amendment, the Trial Examiner cannot conceive that Congress intended to create
any such situation, absent outright repeal of Section 9 (f), (g), and (h) of the Act.
This, of course, it did not presume to do.
3. The 1954 agreement; the discharge of Brown
On April 29, 1954, the Union and the Company executed a union-shop agreement,
effective from March 14, 1954, to March 13, 1956. It is conceded that on the date
of execution the Union was in compliance with the filing and non-Communist
affidavit provisions of the Act, having filed the necessary documents on December
29, 1953. Shortly thereafter, the Union, on June 30, 1954, allowed its compliance
with Section 9 (f) and (g) to lapse and on August 6, 1954, its compliance with
Section 9 (h) likewise lapsed. The Union maintained its noncompliance status
throughout the remaining period of the agreement.
Having already concluded and found that Congress did not intend a certification
under the original amendments to be effective in excess of 1 year, the Trial Examiner
concludes that the Union's notification of compliance in this instance is valid for 1
year subsequent to the date of the last notification, namely, December 29, 1953.
Manifestly, the Union was still in noncompliance status in February 1956, and since
the Trial Examiner has concluded that the maintenance and enforcement of a valid
union-shop agreement is conditioned upon at least yearly renewal of compliance
with Section 9 (f), (g), and (h), it follows that the Union, by causing the Company
NATIONAL LEAD COMPANY 1249
to discharge Brown under the union-security contract at a time when it was not
entitled to this privilege, violated Section 8 (b) (2) and (1) (A) of the Act.
Counsel for the Respondent Company argues that the Act does not "put the
Company on notification," so that prior to making a discharge under the contract it
must first check the compliance status of the Union, as of that date. The Trial
Examiner agrees there is no such provision in the amendment, nor any reference
to that topic in the legislative history. Unquestionably, a procedure of this kind
could create a problem or burden to the Company. However, the other contracting
party, the Union, can eliminate the problem by the simple expedient of doing what
Congress intended be done, if the parties desire to operate under a union-security
agreement. But apart from that solution, Congress made it unmistakably plain
that unions must eliminate Communists and their followers from leadership at the
penalty of being deprived of the processes and benefits of the Act. Again, Congress
made it equally clear that employees were not to be subjected to union-security
agreements except under stated conditions, one of which was compliance with Section
9 (f), (g), and (h). These objectives, in the opinion of the Trial Examiner, are
paramount to any burden or hardship that might be imposed upon an employer
in effectuating a discharge pursuant to a union-shop agreement. It is true, of course,
that this may tend to unstabilize contractual relations between the Company and the
Union, insofar as the union-security provisions are concerned, but, as held in the
Great Atlantic & Pacific Tea Company case (supra), it is the function of the Board
to construe the policy of Congress, not to remake it. The Trial Examiner, therefore,
concludes that any conflicting rights or equities that might arise between Brown
and the Company pursuant to his discharge under the instant union-security agree-
ment must be resolved in favor of Brown. The Trial Examiner concludes and finds
that in yielding to the Union's demand that it discharge Brown, the Company
violated Section 8 (a) (3) and (1) of the Act.
4. The 1956 agreement
After remaining out of compliance for some 20 months, the Union on March
27, 1956, once more renewed its compliance with Section 9 (f) and (g), effective
to June 30, 1956, and with Section 9 (h), effective to December 1, 1956.
On June 6, 1956, the Company and the Union executed another agreement con-
taining a union-shop clause, which became effective March 14, 1956, and runs until
March 13, 1958. It is conceded that the Respondents have at all times maintained
and enforced the union-shop provision of the agreement.
As previously stated, Section 8 (a) (3) permits a union-security agreement if,
among other things, the union "has at the time the agreement was made" received
a notification of compliance from the Board. The General Counsel contends that
since the Union was not in compliance on the effective date of the union-shop pro-
vision, nor within the preceding 12-month period, the provision does not meet the
requirements of the Act.
In Northwest Magnesite Company (101 NLRB 85) the Board expressed some
doubt as to the technical correctness of saying that a union-shop agreement has been
"made" when the contract was signed which conditions the operation and effect of
the clause upon compliance with the pertinent provisions of the Act. The Board was
of the opinion that there was some ambiguity in the use of the word "made," but,
in considering the legislative history, found that the effective date of the provision
was controlling. Thus, the Board declared: "The Senate and House reports indicate
that the purpose of the 1951 amendment was to insure that, at the time the union-shop
became effective, the union would be eligible to invoke the Board's processes under
Section 9 (f), (g), and (h)." Under the circumstances the Board held the contract
valid and a bar to a representation petition.12
The above case supports the conclusion that the union-security provision did not
meet the requirements of Section 8 (a) (3) since it became effective on the date
when the Union was not in compliance with Section 9 (f), (g), and (h), and had
not been during the preceding 12 months.
But, assuming the agreement was "made" as of the date of the execution, rather
than the effective date, the Trial Examiner is convinced that the union-shop clause
still is not in conformity with the provisions of Section 8 (a) (3). While the Union
was in compliance on June 6, it permitted that status to lapse on June 30, only 24
days later, by neglecting or refusing to comply with the filing requirements of Sec-
tion 9 (f) and (g). Accordingly, the Trial Examiner, for the reasons stated above,
concludes and finds that on or after June 30, 1956, the union-shop clause did not
19 See Hughes-Pertie Lime Company, 1 . 04 NLRB 185.
450553-58-vol . 118-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet the requirements of Section 8 (a) (3) of the Act. The past compliance history
of the Union, plus the absence of even a suggestion that it intends to renew its
compliance, warrants the conclusion that the Union has no intention of complying
with the filing and non-Communist affidavit provisions of the Act throughout the
remaining term of the agreement, which runs until March 13, 1958. To hold that
the Union's course of conduct was, and is, proper would be to sanction its flagrant
disregard of the obligations imposed upon it and to subject employees to discharge
under conditions not contemplated by Congress. The Trial Examiner cohcludes that
the continued maintenance and enforcement of the union-shop clause under such
circumstances would be plainly contrary to the expressed purposes and policies of
the Act.
The Trial Examiner therefore concludes and finds that by executing the union-shop
agreement under the conditions found herein and by maintaining and enforcing its
terms, the Respondent Company violated, and is violating, Section 8 (a) (3) and (1)
of the Act, and the Respondent Union violated, and is violating, Section 8 (b) (1)
(A) and (2) thereof.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth above, occurring in connection with
the Respondent Company's operations have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in and are engaging in unfair
labor practices it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent Company, upon demand of the Respondent
Union, illegally discharged Robert Brown about February 10, 1956, for failure to
tender union dues in accordance with the terms of an unlawful union-security agree-
ment, because of the Respondent Union's failure to comply with Section 9 (f), (g),
and (h) of the Act, it will be recommended that the Respondent Company offer to
Robert Brown immediate and full reinstatement to his former or substantially
equivalent position 14 without prejudice to his seniority or other rights and privileges.
It will be further recommended that the Respondent Company and the Respondent
Union, jointly and severally, make Robert Brown 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 he would normally have earned as wages, from
the date of discharge to the date of the Respondent Company's offer of reinstatement,
less his net earnings during said period.15 Back pay shall be computed in accordance
with the Board's customary formula 16 and the Respondent Company shall make
available to the Board or its agents payroll and other records to facilitate the de-
termining of the amount of back pay. As it would be inequitable to the Respondent
Union to permit the amount of its liability to increase despite the possibility of its
willingness to cease past discrimination, the Respondent Union may terminate its
liability for further accrual of back pay by notifying the Respondent Company in
writing and furnishing copies of such notification to Robert Brown that it has no
objection to the employment of Robert Brown, and in that event the Respondent
Union shall not thereafter be liable for any back pay accruing 5 days from the giving
of such notice. Absent such notification, the Respondent Union shall remain jointly
and severally liable with the Respondent Company for all back pay that may accrue.
Having found that the Respondents violated the Act by maintaining in existence
illegal union-security provisions in their agreement of June 6, 1956, it will be
recommended that the Respondents cease and desist from agreeing to, continuing
in force, or giving effect to the foregoing union-security provisions not authorized
by Section 8 (a) (3) of the Act, unless and until the Respondent Union receives
notice from the Board or its agents that it is in compliance with the provisions of
Section 9 (f), (g), and (h) of the Act.
is New York State Employers Association, Inc., 93 NLRB 127, 128, enfd. 196 F. 2d 78,
81 (C. A. 2).
14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
'Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
'IF. IV. Woolworth Company, 90 NLRB 289.
DALLAS GENERAL DRIVERS 1251
Upon the foregoing findings of fact and upon the entire record the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. The operations of National Lead Company, Titanium Division, occur in
commerce as defined in Section 2 (6) and (7) of the Act.
2. Chemical Workers' Basic Union, Local No. 1744, affiliated with the Brother-
hood of Painters, Decorators and Paperhangers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the tenure of employment of Robert Brown,
the Respondent Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act, and has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed under
Section 7, thereby engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) ( I ) of the Act.
4. By attempting to cause and causing the Company to discriminate against Robert
Brown in violation of Section 8 (a) (3) of the Act, the Respondent Union has
engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the
Act, and has restrained and coerced employees of the Company in the exercise of
the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. By executing, maintaining, and enforcing an agreement containing illegal
union-security provisions the Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act;
and the Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) and (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Dallas General Drivers, Warehousemen & Helpers , Local No. 745,
AFL-CIO and Associated Wholesale Grocery of Dallas, Inc.
Case No. 16-CC-71. August 09, 1957
DECISION AND ORDER
On January 9, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
'As the record, exceptions, and briefs adequately present the issues and positions of
the parties, the Respondent's request for oral argument is denied.
118 NLRB No. 165.