Opinion
No. 141, Docket 20355.
February 19, 1947.
Petition by National Labor Relations Board for the enforcement of an order made by it against the American White Cross Laboratories, Inc.
Enforcement granted.
An A.F. of L. union, in October 1944, executed a closed-shop contract with the company for the year beginning January 1, and ending December 31, 1944. The contract contained the following provisions: "Article 1A: All employees presently employed by the Employer * * * shall immediately, upon the signing of this Agreement, become members of the Union and pay their respective Initiation Fees and Dues * * *
"Article 1C: The Employer will employ solely and exclusively members in good standing of said Union and no others.
"Article 4: That upon request of the Union, the Employer will promptly discharge any employee who might be declared by the Union not to be a member in good standing or to be under charges for violation of any of the rules of the said Union or any of his or her obligations thereto."
During October 1944, Miss DeMelia, a member of that Union and an employee of the company, engaged in efforts to procure employee representation by a C.I.O. union; her efforts continued at least until January 20, 1945. On November 22, 1944, the A.F. of L. union and the company executed a contract, containing the above provisions, for the ensuing calendar year. On December 1, 1944, the C.I.O. union petitioned the Board for certification as the bargaining representative of the company's employees. On January 15, 1945, at a Board hearing on that petition, Miss De Melia gave testimony favorable to the C.I.O. union. On January 16 she received a letter, dated January 15, from the A.F. of L. union, ordering her, on January 19, to answer the following charges filed against her: "1. That you have acted together with others to disassociate yourself from our Union, and that you have become a member of a Union other than our own. 2. That you have made public statements contrary to the best interest and welfare of the Union. 3. That you appeared before the National Labor Relations Board in certain petitions against our Union." On January 18, the company was informed of these charges. On January 20, 1945, the A.F. of L. union requested the company to discharge her. The company did so the next day. As a result of proceedings and after a hearing, the Board held that the conduct of the company violated § 8(3) and (4) of the National Labor Relations Act, 29 U.S.C.A. § 158(3, 4), and entered an order accordingly. It then petitioned this court for enforcement.
The Board directed an election; 60 N.L.R.B. 1148. As a result of the election, the Board certified the C.I.O. Union as the exclusive bargaining representative of the company's employees.
The Board's decision, order and findings are reported in 66 N.L.R.B. 866. Pertinent portions of the Act read as follows:
"Sec. 7. 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 concerted activities, for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C.A. § 157.
"Sec. 8. It shall be unfair labor practice for an employer — (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. (2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6(a), an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay. (3) 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, or in the National Industrial Recovery Act (U.S.C. Supp. VII, title 15, secs. 701-712) as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States, 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, membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made. (4) To discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this act."
Gerhard P. Van Arkel, Morris P. Glushien, A. Norman Somers, Ida Klaus, and Ben Grodsky, all of Washington, D.C., for petitioner.
Herman L. Falk, of New York City, for respondent.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
1. The Board found as a fact that the company discharged the employee because of the A.F. of L. Union's request, and that, to the company's knowledge at the time, that request was based in substantial part on the fact that she had testified at the Board's hearing on January 15, 1944. Substantial evidence supports this finding. On the basis of the facts found, we think the Board did not err in concluding that the discharge violated § 8(4). The closed-shop proviso of § 8(3) and the closed-shop contract cannot be read as requiring or authorizing an employer to act in violation of § 8(4). The "testimony" referred to in that subsection relates to testimony given in any proceeding under the Act.
2. The Board also found that the company knew when it discharged the employee that the discharge-request was in part based upon her efforts on behalf of the C.I.O. Union. Substantial evidence supports that finding. On the basis of that finding, the Board held that the company violated § 8(3) of the Act and had interfered with its employee in the exercise of rights guaranteed by § 7.
We think this holding correct, in the light of Wallace Corporation v. National Labor Relations Board, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216. Cf. Local No. 2880 v. N.L.R.B., 9 Cir., 158 F.2d 365. We cannot agree with the suggestion that the Wallace case turned on the fact that there the company colluded with the union, or the fact that there the union was company-dominated. We regard it as irrelevant that here the employee had a civil remedy against the Union. See N.L.R.B. v. Newark Ledger Co., 3 Cir., 120 F.2d 262, 268. Nor is it pertinent that, to the company's knowledge, there were other grounds for the discharge-request. See N.L.R.B. v. Remington-Rand Inc., 2 Cir., 94 F.2d 862, 872.
Moreover, as this objection was not made before the Board, it cannot be considered by us. N.L.R.B. v. Cheney Cal. Lumber Co., 327 U.S. 385, 66 S.Ct. 553.
Enforcement granted.