Colonie Fibre Co., Inc.

In the Matter of COLONIE FIBRE COMPANY, INC. and TEXTILE WORKERS UNION OF AMERICA, CIO and UNITED TEXTILE WORKERS OF AMERICA, AFL, AND LOCAL 446, UNITED TEXTILE WORKERS OF AMERICA, AFL, PARTIES TO THE CONTRACT Case No. 2-C-_-5895.-Decided July 18, 1946 Mr. Jack Davis, for the Board. Medwvin & Weiss, of Albany, N. Y., by Mr. Nathan M. Medwin, for the respondent. Mr. Jack Rubenstein, of New York City, for the CIO. Mr. John Braun, of Albany, N. Y., for the AFL. Miss Ruth E. Blie fiield, of counsel to the Board. DECISION AND ORDER On March 25, 1946, Trial Examiner John H. Eadie issued his Inter- mediate 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. Thereafter, the respondent, the AFL, and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs, and the CIO filed a brief in support of the Intermediate Report. Pursuant to notice to all parties , oral argu- ment, requested by the respondent and the AFL, was held before the Board at Washington, D. C., on June 11, 1946. The respondent ap- peared and participated in the argument. 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. The Board has considered the Intermediate Report, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as hereinafter modified. The Trial Examiner found that the discharges of Blais and Blair, pursuant to the terms of the 1945 maintenance-of-membership con- tract between the AFL and the respondent, were discriminatory, in- * In a Supplemental Decision , the Board amended this Decision and Order nunc pro tune as of July 18, 1946 , by striking the fifth and sixth paragraphs and substituting new material therefor. See Matter of Colonie Fibre Company , Inc., 71 N. L. R. B. 354. 69 N. L. R. B., No. 74. 589 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asmuch as the respondent knew that the AFL's demands for the dis- charge of these employees were based in part upon their union activity on behalf of a rival union during an appropriate period when a ques- tion concerning representation existed. The Trial Examiner deemed it unnecessary to pass upon the contentions of counsel for the Board that the maintenance-of-membership clause in the 1945 contract was invalid because of its retroactivity and that the discharges of Blais and Blair were discriminatory because neither the respondent nor the AFL afforded them opportunity to establish themselves as members in good standing of the AFL. All parties have filed exceptions to the failure of the Trial Examiner to rule upon these two contentions. In March 1944, the respondent and the AFL entered into a collective bargaining contract for a term ending March 14,1945, which contained, inter alia, a maintenance-of-membership clause, effective 15 days after August 28, 1944. On January 8, 1945, in accordance with the pro- visions of a renewal clause in the contract, the respondent was notified by letter of the AFL's desire to negotiate a new agreement. About the same time, the CIO commenced its organizational campaign in the plant, requested recognition later in January, and subsequently filed with the Board a petition for investigation and certification of repre- sentatives. Pursuant to a Decision and Direction of Election issued by the Board, an election was conducted on May, 11, 1945, which was won by the AFL. On May 23, 1945, the respondent and the AFL entered into a second contract, containing a maintenance-of-member- ship clause identical with that in the previous contract. Thus, the contract executed on May 23, 1945, provided that all employees who were members of the AFL 15 days after August 28, 1944, should, as a condition of employment, remain members in good standing for the duration of the 1945 agreement. Between March 14, 1945, the date of the expiration of the original contract, and May 23, 1945, the date of the execution of the second agreement, there was no contract in existence between the AFL and the respondent. On June 12 and 18, 1945, respectively, Blais and Blair, who had severed their connection with the AFL and joined the CIO in January, were discharged by the respondent, pursuant to the demand of the AFL under the main- tenance-of -membership clause of the 1945 contract, for the reason that they were no longer members in good standing, having engaged in activity on behalf of a rival union and failed to pay dues since January 1945. While, like the Trial Examiner, we reach the same determination that the discharges of Blais and Blair were discriminatory, our find- ing is based on our conclusion that the maintenance-of-membership clause contained in the second contract between the AFL and the re- spondent is invalid because of its retroactive feature.' From March 1In so holding, we are not passing on the validity of the contract as a whole, which, though executed by the parties on May 23, 1945, was made retroactive to March 14, 1945; our finding relates solely to the maintenance-of-membership clause in this contract. COLONIE FIBRE COMPANY, INC. 591 to May 1945, during the pendency of a question concerning representa- tion, there was no contract in effect between the respondent and the AFL. Yet, upon the resolution of the representation question, a new contract was executed with its maintenance-of-membership provisions made retroactive in effect so as to cover the period during which the AFL's status as the employee representative was in doubt and during which contractual relations had lapsed. If the retroactive effect of such provisions for the period between the termination of the old and the execution of new contracts should be condoned, a union would be enabled to establish a closed shop for an unreasonable period, indeed for an indefinitely long time or perhaps even in perpetuity, since the union could thus require membership in. its organization not only for the duration of its contracts with an employer but also for the interim period between the lapse of the old and execution of the new contracts. Moreover, for us to hold otherwise would incur in employees desirous of changing their bargaining agent at all appropriate time near the termination of a union-shop contract such fear of subsequent reprisal in the event that their efforts were unsuccessful that they would never evoke their right in these circumstances to a change of representatives 2 We conclude that the maintenance-of-membership clause of the 1945 contract, being retroactive in effect to 15 days after August 28, 1944, is not within the protection of the proviso to Section 8 (3) of the Act 3 and is invalid. Since Blais and Blair were discharged be- cause they were not members in good standing with the AFL, their discharges were discriminatory. We find that by discharging Blais and Blair under the circumstances hereinabove set forth, the re- spondent discriminated against them in regard to the hire and tenure of their employment, discouraged membership in the CIO, encouraged membership in the AFL, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 4 1 Cf. International Association of Machinists, Tool and Die Makers Lodge No. 35, et al. V. N. L. R. B., 110 F. (2d) 29 (C. A. D. C.), in which the court stated, "The practice of ante- dating contracts may be legitimate or otherwise according to varying circumstances. What- ever its effect between the parties, rights of third parties should not be affected adversely, particularly when they involve interests so important and controversial as collective bar- gaining and the closed shop. To stamp with judicial approval a practice so questionable would invite evasion of the statute's intended protections." I This provision states that nothing in the 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 employ- ment, membership 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." ' Although Blais and Blair did not pay dues in the AFL from January through March 1945, it is unnecessary to pass on the effect of such non-payment, inasmuch as the original contract expired on March 14, 1945, and no demand was made during the period of this contract that these employees be discharged for failure to pay dues. Since the mainte- nance-of-membership provision of the 1945 contract was invalid, it is unnecessary for us to determine whether the discharges of Blais and Blair were discriminatory because neither the respondent nor the AFL afforded them an opportunity to establish themselves as mem- bers in good standing of the AFL. .592 DECISIONS OF NATIONAL LABOR RELATIONS BOAR. THE REMEDY Having found that the maintenance-of-membership clause in the contract between the respondent and the AFL executed on May 23, 1945, is invalid because of its retroactivity, we shall order the re- spondent to cease giving effect thereto for the period from 15 days after August 28, 1944, to May 23, 1945, the date of the execution of the 1945 contract. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Colonic Fibre Company, Inc., Green Island, New York, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or any other labor organization or encouraging membership in United Textile Workers of America, AFL, and Local 446, United Textile Workers of America, AFL, or any other labor organization, by discharging or refusing to reinstate any of its employees, or by dis- criminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment because of their failure to maintain membership in a labor organization, except insofar as said conduct is protected by the proviso to Section 8 (3) of the Act. (b) Giving effect to the maintenance-of-membership clause in its contract with United Textile Workers of America, AFL, and Local 446, United Textile Workers of America, AFL, for the period from 15 days after August 28, 1944, to May 23, 1945, for the purpose of discharging or refusing to reinstate any of its employees, or for the purpose of in any manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : "(a) Offer to Omer Blais and Charles Blair, Sr., immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privi- leges; (b) Make whole Omer Blais and Charles Blair, Sr., for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them, by payment to each of them a sum of money equal to that which each would normally have earned as wages from the date COLONIE FIBRE COMPANY, INC. 593 of the respondent's discrimination against them to February 25, 1946, in the case of Omer Blais, and in the case of Charles Blair, Sr., to the (late of the respondent's offer of reinstatement, less his net earn- ings during slich'periods; (c) Post immediately at its plant at Green Island, New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sec- ond Region, shall, after being duly signed by the respondent's repre- sentative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respond- ent to insure that said notices are not altered. defaced, or covered by any other material; (d) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. "APPENDIX A" N oTICE ro ALT, EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in Textile Workers Union of America, CIO, or any other labor organization, or en- courage membership in United 'T'extile Workers of America, AFL, and Local 446, United Textile Workers of America, AFL, or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employ- tnent, or any term or condition of their employment because of their failure, to maintain membership in a labor organization, except insofar as said conduct is protected by the proviso to Sec- tion 8 (3) of the Act. WE WILL NOT give effect to the maintenance -of-membership clause in our contract with United Textile Workers of America, AFL, and Local 446, United Textile Workers of America, AFL, for the period from 15 days after August 28,1944, to May 23, 1945. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and 701592 --.47-.-vol. 69--39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Omer Blais Charles Blair, Sr. COLONIE FIBRE COMP_A N 1 , INC. Employer Dated-------------------- By-------------------------------- (Representative ) (Title) NOTE : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Jack Davis , for the Board. Medwin & Weiss, of Albany, N. Y., by Mr. Nathan 11. Medaoin, for the re- spondent. Mr. Jack Rubenstein, of New York, N. Y., for the CIO. Mr. John Braun, of Albany , N. Y., for the AFL. STATEMENT OF THE CASE Upon a second amended charge duly filed by Textile Workers Union of Amer- ica, CIO, herein called the C. I. 0., the National Labor Relations Board, herein called the Board, by its Regional Director for the Second Region (New York, New York), issued its complaint dated February 13, 1946, against Colonie Fibre Company, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the -National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent, the C. I. 0., and United Textile Workers of America, AFL, and Local 446, United Textile Workers of America, AFL, parties to the contract and together herein called the A. F. L. With respect to the unfair labor practices, the complaint alleged in substance : (1) that the respondent and the A. F. L. executed a collective bargaining contract in 1944, expiring on March 14, 1945, and containing a maintenance of member- ship clause; (2) that on or about May 23, 1945, the respondent and the A. F. L. entered into a collective bargaining agreement containing an identical mainte- nance of membership clause; (3) that between the period from March 14, 1945, and the date of execution of the second contract, there was no collective bargain- ing contract in existence; (4) that the maintenance of membership clause in the second contract was invalid in that it required employees who were not members of the A. F. L. on the date of execution of said contract to have maintained mem- bership in that organization during a period when there had been no contract in effect, (5) that the respondent discharged Omer Blais' and Charles Blair, Sr., on June 12 and June 20, 1945, respectively, and since the dates of their discharges ' Omer Blais is the son of Charles Blair, Sr., and during the hearing was at times re- O rred to as Omer Blair. COLONIE FIBRE COMPANY, INC. 595 has failed and refused to reinstate them; (6) that said Blais and Blair were not members of the A. F. L. on May 23 , 1945, nor did they become members after that date; (7) that the respondent discharged said Blais and Blair without first affording them an opportunity to join or establish good standing in the A. F. L., nor was such opportunity afforded them by the A. F. L.; (8 ) that the respondent discharged and refused or failed to reinstate said Blais and Blair for the reasons that they joined or assisted the C. I. 0. or engaged in other concerted activities and that they failed to maintain membership in the A. F. L. during the period from 15 days after August 28, 1944 to May 23 , 1945; and (9) that by said acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent thereafter filed its answer wherein it admitted the allegations in the complaint as to the nature and extent of the respondent's business, the execution of the collective bargaining contracts with the A . F. L. and the dis- charges of Blais and Blair , but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Albany, New York, on February 25 and 26, 1946, before the undersigned Trial Examiner , duly designated by the Chief Trial Examiner . At the opening of the hearing the A . F. L. made answer orally to the complaint on the record . In substance, the answer admitted the execution of both contracts as alleged in the complaint and the discharges of Blais and Blair, but denied all other allegations of the complaint pertaining to the alleged unfair labor practices. At the hearing the Board, the respondent, and the A. F. L. were represented by counsel, and the C. I. 0. by a lay'repre- sentative. All parties participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues. At the conclusion of the Board's case and again at the close of the hearing, the respondent and the A. F. L. moved sepa- rately to dismiss the complaint . Ruling was reserved. The motions to dismiss are now denied. At the conclusion of the evidence the Board 's counsel moved to conform the pleadings to the proof as to formal matters such as names and dates. There was no objection and the motion was granted . The parties, except the C. I. 0., argued orally on the record before the undersigned at the close of the hearing. All the parties were afforded an opportunity to file briefs with the undersigned. A brief has been filed by the respondent and the A. F. L. has filed a letter in which its position on the facts and law is briefly stated. Upon the entire record and from his observation of the witnesses, the under- signed makes the following: FINDINGS of FACT' 1. THE BUSINESS OF THE RESPONDENT Colonie Fibre Company, Inc., is a New York corporation having its principal office and place of business in the City of Green Island, New York. It is en- gaged in the processing, sale and distribution of rags and related products. Annually, rags and other materials totalling in excess of 5,000 ,000 pounds in weight are transported or delivered to the respondent 's Green Island plant, of which approximately 90 percent comes to the plant from points outside the State of New York. Annually, the respondent processes at its Green Island plant products totalling in excess of 5,000,000 pounds in weight, of which ap- proximately 90 percent is shipped to points outside the State of New York. S Unless otherwise indicated , the findings of fact are based upon admitted facts or un- contradicted evidence which the undersigned credits. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America, CIO ; United Textile Workers of America, AFL ; and Local 446, United Textile Workers of America, AFL, are labor organ- izations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events 1. Introduction There is no substantial dispute as to the material facts in this case. The sole issue involved is the legality of the respondent's action, following the A. F. L.'s victory over the C. I-0. in a Board election, in discharging at the insistence of the A. F. L. Omer Blais and Charles Blair, Sr., employees who, prior to the election, had engaged in activities on behalf of the C. I. O. and had been expelled from the A. F. L. after the election, for dual unionism and non-payment of dues. The A. F. L.'s demands for the discharges were based upon a retroactive main- tenance of membership clause in a contract executed after the election. 2. The contracts between the A. F. L. and the respondent In 1944, the respondent entered into it contract with the A. F. L. for a term ending on March 14, 1945. The contract contained the following clause: "1. UNION SECURITY CLAUSE "All employees who, fifteen (15) days after August 28, 1944, are members of the Union in good standing in accordance with the constitution and by- laws of the Union, and all employees who thereafter become members, shall as a condition of employment, remain members of the Union in good stand- ing for the duration of this contract. "The Union shall promptly furnish the National War Labor Board and the Company a notarized list of its members in good standing as of the fifteenth day after August 28, 1944. If any employee named on that list asserts that he withdrew from membership in the Union prior to that day, and any dispute arises or if any dispute arises as to whether an employee is or is not a member of the Union in good standing, the question as to withdrawal or good standing, as the case may be, shall be adjudicated by an arbiter appointed by the National War Labor Board, whose decision shall be final and binding oil the Union, the Employee,, and the Company. "The Union agrees that neither it nor any of its officers or members will intimidate or coerce employees into membership in the Union. If any dis- pute arises (as to whether there has been any violation of this pledge or whether any employee affected by this clause has been deprived of good standing in any way contrary to the constitution and by-laws of the Union), the dispute shall be regarded as a grievance and submitted to the grievance machinery, and, if necessary, to the final determination of an arbiter ap- pointed by the National War Labor Board in the event that the collective bargaining agreement does not provide for arbitration." By letter dated January 8, 1945, in accordance with the provisions of a rene%val clause in said contract, the A. F. L. notilied the respondent that it desired to negotiate it uew agreement. A contract dated 1\Iarch 14, 1945, was entered into COLONIE FIBRE COMPANY, INC. 597 by the A. F. L. and the respondent on May 23, 1945 .' The contract contained a union security clause identical with that above set forth. No contract or extension thereof was in effect from March 14 to May 23, 1945. 3. The union activities of Blais and Blair and the election Blais and Blair were first employed by the respondent about April of 1943. During the calendar year 1944, Blais was president of the A. F. L. local. As such, he was exempt from paying dues. In the election for 1945 officers, Blais ran for office as business agent but was defeated. Blair was also a member of the A. F. L. and paid his dues through December of 1944. At some time early in January 1945, and prior to January 12, Blais, at the request of a committee of employees, approached officials of the C. I. O. with respect to organizing the respondent's employees. Both Blais and Blair joined the C. I. O. and immediately disassociated themselves from the A. F. L. by no longer attending meetings or paying dues. Blais and another employee, Joseph Giroux, assumed leadership of the C. I. O. organizational drive. By letter dated January 12, 1945, the C. I. O. notified the respondent that it represented a majority of employees and requested a conference for the purpose of negotiating a contract. The respondent refused to recognize the C. I. O. as the collective bargaining agent of its employees until certified by the Board. Upon a petition for certification filed by the C. I. 0., the Board held a repre- sentation hearing on March 8, 1945, and Blais testified as a C. I. O. witness at the hearing. The Board rendered its Decision and Direction of Election on April 18, 7945. From shortly after April 18, 1945, until the election on May 11, both Blais and Blair openly wore C. I. O. buttons while at work. Blais solicited members for the C. 1. O. in the plant and Blair acted as a watcher for the C. I. O. at the election. The C. I. O. lost the election to the A. F. L. and it does not appear that thereafter either Blais or Blair were to any appreciable extent active on behalf of the C. 1. O. 4. The expulsions of Blais and Blair from the A. F. L., and the demands upon the respondent for their discharge About 1 week after the election on May 11, Corbett, Joseph Bouleris, committee- man of the A. F. L., and Joseph Delisle, recording secretary and shop chairman of the A. F. L., complained to Norman Bagley, respondent's superintendent, that Blais and Blair had been and were engaging in C. I. O. activities. Bagley told them that he would "correct" the situation. On May 23, during the conference between the A. F. L. and the respondent when the 1945 contract was executed, the A. F. L. demanded that Blais, Blair The negotiations for a contract were carried on between the A. F. L. and three other companies . The respondent apparently did not enter the negotiations due to the fact that the C. I. O. had requested recognition as bargaining agent of the respondent 's employees. Joseph H . Levy, respondent's assistant treasurer , testified that the respondent signed on May 23 an identical contract in form as had been agreed upon by each of the three other companies and the A. F . L. ; and that there were no negotiations between the respondent and the A. F. L. prior to May 23. The testimony of James P. Corbett , an organizer and business agent for the A . F. L., indicates negotiations for the contract between the A. F. L. and the respondent prior to May 23. Corbett 's testimony, however, in this respect and in other matters was vague and indefinite as to dates, occurrences and the sequence of events. Accordingly , the undersigned credits Levy's testimony in this connection. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Giroux be discharged. Levy referred the A. F. L. officials to respondent's attorney, Nathan M. Medwin, with respect to their demand.' Some few days after May 23, Corbett called at Medwin's office and demanded that Blais and Blair be discharged by the respondent for the reason that they were not members in good standing of the A. F. L. Medwin refused, claiming that the respondent did not have evidence of the A. F. L.'s contention. Shortly thereafter, during the last week of May, Corbett, Pincus, an international repre- sentative of the A. F. L., and Conciliator Rooney met with Medwin at the latter's office.' Medwin again requested evidence of the charges made by the A. F. L. By letter dated June 5, the A. F. L. notified Blais as follows:' "This is to inform you that on Sunday, June 10th at 11: 00 A. M. at Labor Temple, 105 Remsen St., Cohoes, there will be a Special Meeting of the Executive Board of Local #446 United Textile Workers of America, A. F. of L. at which your presence is necessary to answer charges of conduct unbecoming a Union Member to the extent of failure to maintain dues payments for an extended period of time and activity in behalf of a dual Union with the avowed purpose of undermining the U. T. W. A.-A. F. of L. in the Colonie Fibre Co., where you are presently employed. "According to the procedure outlined by the International Union in such instances, you will be confronted at the above-mentioned Executive Board Meeting with these same charges herein contained in greater detail and in writing. Also, this entire procedure is to allow you full and due process in presenting before the Executive Board on the above-mentioned date any data or arguments, verbal and written, in your behalf and if you so choose, the right to have present any witnesses or intervenors in your behalf. "Should you fail to attend this Meeting, the business at hand will proceed nevertheless, and in any event, if found guilty finally, you may suffer the loss of your employment at the Colonie Fibre Company in accordance with the present Union Agreement in force." Blais, by letter dated June 6, sent the following answer to the A. F. L.'s letter and also forwarded a copy to the respondent : "I am in receipt of your letter of June 5th and am considerably surprised that you should even write to me. You are well aware that I am not and have not been for some time, a member of your union. "In view of this and the fact that I am not under your jurisdiction, the contents of the letter are laughable. I can only view the fact that you sent me such a letter, with suspicion and take it for granted that you have an ulterior motive in sending such a preposterous letter. "Kindly remember in the future, that I am not a member of your union and refrain from pestering me. I am sending a copy of this to the Company." On June 6 a work stoppage occurred at the respondent's plant, purportedly for the reason that the employees involved refused to work with Blais and Blair' * Levy testified as to the demands made on May 23 and the undersigned credits his testi- mony in this connection. Corbett, who was present at the conference, testified that Blais and Blair were not mentioned at the time. However, his testimony indicates that the A. F. L. had made demands for the discharge of Blais and Blair prior to May 23. In this connection he may have been referring to the complaint made to Bagley found above. His testimony, however, is too vague and indefinite for the undersigned to make any specific findings in this respect. See footnote 3, supra. J It is not clear from the evidence whether Rooney represented the State or Federal Con- ciliation Service. He was not called as a witness, nor was Pincus. 6 Corbett testified that Pincus told him that he (Pincus) had sent a letter to Blair. Blair denied that he had received a letter from the A. F. L. notifying him of charges, and the undersigned credits his denial. P There is no evidence in the case that the work stoppage was authorized by the A. F. L. COLONIE FIBRE COMPANY, INC. 599 The respondent requested Corbett and Medwin to come to the plant . During the ensuing conversation , Corbett advised the respondent that the employees refused to return to work unless Blais and Blair were discharged and he renewed the demand that they be discharged pursuant to the union security clause of the 1945 contract . At the time Corbett further advised the respondent that Blais and Blair were no longer members in good standing of the A . F. L. because of dual unionism, referring specifically to their activities on behalf of the C. I. 0., and non-payment of dues e Medwin requested arbitration of the dispute in accordance with the terms of the contract . The A. F. L. refused arbitration and Medwin finally promised , in substance , that Blais and Blair would be discharged if the A. F. L. submitted evidence that they had been members of the A. F. L. when the 1945 contract was executed but were no longer members in good standing. Medwin further requested evidence in writing that Blais and Blair, after due notice, had a hearing in accordance with the A. F. L.'s by-laws and constitution , and notification to the respondent in writing of the action taken e The employees then returned to work after a work stoppage of about 2 hours in duration. It appears that Blais was expelled from the A. F. L. at a special meeting held on June 10 but the record is silent as to the date of expulsion of Blair. Neither Blais nor Blair was requested to pay his 1945 dues prior to his expulsion from the A . F. L., nor did they offer to pay their dues , although dues were collected from other employees in their presence.10 5. The discharges of Blais and Blair On June 11, 11,45, the A. F. L. sent the respondent the following letter : "On Sunday, June 10, 1945, after all due process afforded Omer Blais, Local #446 U. T. W. A.-A. F. of L. decided that the said Omer Blais was no longer a member in good standing of the Organization and therefore should 'Both Medwin and Corbett testified substantially to the above conversation. Corbett testified that he advised the respondent as to the reasons why Blais and Blair were not in good standing in the A. F. L., and the undersigned credits his testimony in this connec- tion. .Medwin by his testimony, in effect, admitted that the respondent was so advised at that time. °Medwin testified that lie requested arbitration and that he specified the type of evidence required by the respondent before discharging Blais and Blair. Levy corroborated Med win's testimony as to the conversation and the undersigned credits their testimony in thin respect. Corbett, in effect, denied that Medwin requested the above procedure before promising the discharge of Blais and Blair. However, Corbett testified that Medwin had requested such proof at prior conferences when the A. F. L. had demanded their discharges. 1O Both Blais and Blair testified that they were not at any time requested to pay their dues, and the undersigned credits their testimony in this respect. Joseph Bouleris, the A. F. L. dues collector, testified that he requested both Blais and Blair to pay their dues in January 1945, and again some few days after the election on May 11, but that they refused to pay on each occasion. Bouleris also testified that some few days after the election he collected $5 for back dues from Giroux. Later in the hearing when it was called to his attention that the A. F. L. records showed that Giroux had paid $5 in August and not in May, Bouleris testified that Giroux had merely agreed to pay his back dues when approached after the election. However, it is to be noted, as found above, that the A. F. L. requested the respondent to discharge Giroux on May 23. The demand for Giroux's discharge was subsequently withdrawn but the record is silent as to the date of withdrawal. Further, the evidence discloses that it was the custom of the A. F. L. dues collector to complain to Bagley with respect to members delinquent in their dues and he (Bagley) would speak to the employees concerned, as was done after the election on May 11. Bagley was not called as a witness and there is no claim in the case that he at any time was requested to or did ask either Blais or Blair to pay up his back dues. For these reasons the undersigned does not credit Bouleris' testimony as to his demands on Brats and Blair to pay their hack dues and their refusal. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be removed from the employ of the Colonie Fibre Company, Inc. in accordance with the present Union Agreement and its provisions regarding those em- ployees of the Company who were members in good standing of the Union fifteen days after August 28, 1944. "The Executive Board and the Membership of Local #446 have therefore authorized this written request for the termination of the Company's employ- ment of Omer Blais and upon presentation of this request also expect, due to all evidence and circumstances taken into consideration. final and conclu- sive compliance by the Employer." On June 12 when Blais reported for work lie was called to the office. Levy showed Blais the above letter and told him that he was discharged until such time as lie became a member in good standing of the A. F. L. Blais asked for an opportunity to explain his side of the case but was refused. The A. F. L. sent the following letter, dated June 18, 1945, to the respondent: "This is to inform you that Mr. Charles Blair, Sr., by action of Local #446 United Textile Workers of America, A. F. of L., has been found to be no longer a member in good standing of the Organization by his self-evident violation of the Local Union Rules and By-Laws, and that section pertaining to Dues Payments. "Accordingly, I have been authorized by Local #446 to request that Mr. Charles Blair, Sr.'s employment in your Firm be terminated in line with the Maintenance of :Membership Clause in the present 1-nion Agreement." Blair was discharged on June 20 by Levy, who first showed him a copy of the above letter. 13. Concluding findings In this case Blais and Blair sought to change their collective bargaining agency shortly before the expiration of the 1944 contract. The A. F. L. demanded their discharges when the 194:1 contract was executed on Play 23, and on two subsequent occasions prior to June 6. It is the testimony that on those occasions prior to June 6 and also on June 6 the A. F. L. demanded the discharges for the reason that Blais and Blair were no longer members in good standing of the Union. Concerning the demands made prior to June ti, no questions were propounded by counsel to elicit testimony as to whether or not the A. F. L. advised the respondent at those times why Blais and Blair were not m embers in good standing of the Union. However, Corbett, when questioned if he advised the respondent during the conversation on June 6 of the reasons why Blais and Blair were not members in good standing, testified that he notified the respondent that dual unionism and non-payment of dues were the grounds upon which the charges were based and that he specifically referred to the C. 1. O. activities of Blais and Blair. That the A. F. L. consistently urged dual unionism as a ground for discharge is evidenced by its complaint concerning the C. I. O. activities of Blais and Blair, made to Bagley, respondent's plant superintendent, shortly after the election on May 11. Accordingly, the undersigned is convinced and findsthat Illl' respondent had knowledge on May 23 and on all subsequent occasions when the A. F. L. demanded the discharges of Blabs and Blair that the A. F. L.'s demands were predicated upon dual unionism, in addition to non-payment of dues. In view of the above finding of the responnlont's knowledge of the basis for the A. F. L.'s demands, to wit, the activities of Blais and Blair on behalf of a rival union during an appropriate period when a question concerning representa- tion existed, the undersigned is convinced and finds that the discharges are not protected by the proviso of Section 8 (3) of the Act." It is therefore found that ^' Wallace Corporation v. N, L. R. B., 323 U. S. 248. affirming 141 F. (2d) 87 (C. C. A 4), enforcing 50 N. L. R. B. 138 ; platter of Rutland Court O u'nera, lrut, 44 N. 1.. it. 11 COLONIE FIBRE dbMPANY, INC. 601 by its discharge of Onier Blass on June 12 . 1945, and of Charles Blair , Sr., on June 20, 1945 , and its failure thereafter to reinstate there, the respondent dis- criminated in regard to their hire and tenure of employment , thereby discouraging membership in the C . I. 0., and interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned finds it unnecessary to pass upon the Board 's contentions that the maintenance of membership clause in the 1945 contract was invalid because of its retroactivity, and that the discharges of Blais and Blair were discriminatory because neither the respondent nor the A . F. L. afforded them opportunity to establish themselves as members in good standing of the Union. IV. THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent 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 ob- structing commerce and the free slow thereof. V. '1'iii: REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be reeonunended that it cease and desist therefrom, and take cer- tain action necessary to effectuate the policies of the Act. Accordingly, it will be recommended that the respondent cease and desist from discouraging membership by discriminating for engaging in activities directed to the designation of a new representative to succeed an existing rep- resentative at the end of the latter's contract terns. Since it does not appear that the respondent has a policy of interfering with its employees in the exer- cise of their rights under Section 7 of the Act, a broad cease and desist order will not be recommended. However, implicit in the threat of discrimination Ifs above mentioned , is the threat of other acts interfering with the employees' activities in seeking new representation. Accordingly, the undersigned will recommend a limited cease and desist order to effectuate the policies of the Act in this respect. It has been found that on June 12, 1945, the respondent discriminatorily discharged Omer Blais. It will be recommended that the respondent offer Other Blass immediate and full reinstatement to his former or substantially equivalent position " without prejudice to his seniority and other rights and privileges. It will be further recommended that the respondent make Omer Blais whole for any loss of pay he may have suffered by reason of the dis- crimination against him, by payment to him of a slim of money equal to that which he normally would have earned as wages from June 12, 1045, the (late of his discriminatory discharge, to February 25, 1946," less his net earnings' during said period. 587 ; 46 N. L. R. B. 1040; Matter of Portland Lumbers Mills, 64 N. L. R. B. 159: 17 L. it. R. 260. '- By "substantially equivalent position" is meant that the respondent must offer to Omer Bin is his former position if available, or a substantially equivalent position if his former position is not available at the time of the offer of reinstatement. " Blais testified at the hearing on February 25 that he (lid not desire reinstatement. l; By "net earnings" is meant earnings less expenses, such as for transportation, rooms, and board, incurred by an employee in connection with obtaining work and workin,t else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lurcaber Clovipuay/, R N. L. It. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. R., 311 1". S. 7. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has also been found that on June 20, 1945, the respondent discriminatorily discharged Charles Blair, Sr. It will be recommended that the respondent offer Charles Blair, Sr., immediate and fall reinstatement to his former or sub- stantially equivalent position" without prejudice to his seniority and other rights and privileges, and that the respondent make Charles Blair, Sr., whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sutra of money equal to that which he normally would have earned as wages from June 20, 1945, the date of his discriminatory discharge, to the date of the offer of reinstatement, less his net earnings" dur- ing said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO ; United Textile Workers of America AFL: and Local 446, United Textile Workers of America, AFL, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Omer Blais and Charles Blair, Sr., thereby discouraging membership in Textile Workers Union of America, CIO, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By said acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law , the under- signed recommends that the respondent, Colonic Fibre Company, Inc., of Green Island, New York, its officers, agents, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, CIO, or any other labor organization, by discharging or refusing to reinstate any of its employees , or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment for engaging in activities directed to the designation of a new bargaining representative to suc- ceed an existing bargaining representative at the end of the latter's contract term. (b) Any other acts in any manner interfering with the efforts of its employees to designate a new bargaining representative to succeed an existing bargaining representative upon the termination of the latter's contract. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Omer Blais and Charles Blair, Sr., immediate and full reinstate- ment to their former or substantially equivalent positions" without prejudice to their seniority and other rights and privileges; (h) Make whole Omer Blais and Charles Blair, Sr., for any loss of pay they may have suffered by reason of the respondent's discrimination against them, '" See footnote 12, supra. See footnote 14, supra. ° See footnote 12, supra. COLONIE FIBRE COMPANY, INC. 603 by payment to them of a sum of money equal to that which they would normally have earned as wages from the dates of respondent's discrimination against them to February 25, 1946, in the case of Omer Blais, and in the case of Charles Blair, Sr., to the date of the respondent's offer of reinstatement, less their net earnings' during such periods; (c) Post immediately at its plant at Green Island, New York, copies of the notice attached to the Intermediate Report, herein marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Second Region, after being duly signed by the respondent's representative, shall be posted by the respondent 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 the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) File with the Regional Director for the Second Region, on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless the respondent notifies said Regional Director in writing within ten (10) days from the receipt of this Intermediate Report that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceedings (including rulings upon all mo- tons or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall 'erve a copy thereof upon each of the parties and, shall file a copy with the Re- gional Director. As further provided in said Section 33, 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 the order transfer- ring the case to the Board. JOHN H. EADIE, Trial Examiner, Dated March 25, 1946. "APPENDIX A" NOTICE TO ALL EMPLOYEES Pursuant to recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Rela- tions Act , we hereby notify our employees that : WE WILL NOT discourage membership in TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor organization , by discharging or re- 18 See footnote 14, supra. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fusing to reinstate any of our employees, or in any other manner discrim- inate in regard to their hire and tenure of employment or any term or con- dition of employment for engaging in activities directed to the designation of a new bargaining representative to succeed an existing bargaining repre- sentative at the end of the latter's contract term. WE WILL NOT engage in any other acts in any manner interfering with the efforts of our employees to designate a new bargaining representative to succeed an existing bargaining representative upon the termination of the latter's contract. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Omer Blais Charles Blair, Sr. COLONIE FIBRE COMPANY, INC. Employer By------------------------------- (Representative ) (Title) Dated -------------------- NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in ac- cordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.