Colonie Fibre Co., Inc.

In the Matter of COLONIE FIBRE COMPANY, INC. and TEXTILE WORKER'S UNION OF AMERICA, CIO and UNITED TEXTILE WORKERS OF AMER- ICA, AFL, AND LOCAL 446, UNITED TEXTILE WORKERS OF AMERICA, AFL, PARTIES TO THE CONTRACT Case No. 2-C-5895 SUPPLEMENTAL DECISION October 14, 1946 On July 18, 1946, the Board issued its Decision and Order herein., Upon further consideration thereof, the Board hereby amends said Decision and Order, nunc pro tune, as of July 18, 1946, by striking the fifth and sixth paragraphs and substituting theref or the following : While, like the Trial Examiner, we reach the same determination that the discharges of Blais and Blair were discriminatory, our finding is based on our conclusion that the maintenance-of-membership clause contained in the second contract between the AFL and the respondent is invalid because of its retroactive feature.2 From March to May 1945, during the pendency of a question concerning representation, 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 provision made re- troactive 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. We find that this clause in the con- tract required that on the date of its execution, as a condition of further employment, all employees who were members of the AFL 15 days after August 28, 1944, must have maintained membership in the AFL for a period starting 81/2 months prior to May 23, 1945.3 It 1 69 N L R B 589 2 In 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-meqibership clause in this contract. 3 This is a construction of the contract dictated both by its terms and by the obvious intent of the parties The old contract had required employees covered by the mainte- nance-of-membership clause to remain members of the AFL until its expiration on March 14, 1945, by the terms of the new contract all such employees must have remained mem- beis not only during this period but from March 14, 1945, until May 23, 1945, as well, in order to meet the retroactive requirements of the new contract signed on the later date Moreover, that the parties intended this provision to effect the immediate dismissal of those who had not maintained their membership during the interim period from March 14, 1945, to May 23, 1945, is borne out by the fact, among others, that on the very day of the contract's execution the AFL made its first demand for the discharge of Blais and Blair. 71 N L R B., No. 50. 354 0 COLONIE FIBRE COMPANY, INC. 355 included, therefore, a period of over 2 months during which no con- tract was in effect between the respondent and the AFL and subjected to the penalty of discharge those who had not lived up to its require- ments during that period. The validity of such a contractual provision can be upheld only if it falls within the protection of the proviso to Section 8 (3) of the Act.4 That proviso, in sanctioning contracts which require member- ship in a union as a condition of employment, does not sanction con- tracts which require past membership as such a condition. A con- struction permitting such a retroactive requirement would be incon- sistent both with the terms of the Act and with the principle of free self-organization which the Act is designed to protect. The Act grants employees the right to self-organization and the right to membership or non-membership in labor organizations (Sec- tions 1, 7, 8 (1), and 8 (3)). The "precise nature and limits" of the exception to these rights contained in the proviso to Section 8 (3) must be literally observed. N. L. R. B. v. Electric Vacuum Cleaner Co., 315 U. S. 685, 695. See also U. S. v. Dickson, 15 Pet. 141, 165:; Fleming v. Hawk Eye Pearl Button Company, 113 F. (2d) 52, 56 (C. C. A. 8) ; Thompson v. U. S., 258 Fed. 196, 201 (C. C. A. 8), certiorari denied 251 U. S. 553. The proviso permits contracts which require union membership during their term of all employees including those who have not joined the contracting union prior to execution of the contract. But to construe the proviso as also permitting contracts which require membership in the past would bring about the very result condemned by the Supreme Court in Wallace Corporation v. N. L. R. B., 323 U. S. 248, aff'g 141 F. (2d) 87 (C. C. A. 4), enf'g 50 N. L. R. B. 138. The burden of the Supreme Court's decision in that case was that since the Act "was designed to wipe out such discrimina- tion in industrial relations," the closed-shop proviso could not be used to penalize employees for not having belonged to the victorious union at a time when they were within their rights in not belonging (321 U. S., at pp. 255-256). It would make no difference even if we were to assume (1) that the contract gave Blais and Blair the opportunity to remain employees by paying up their past dues after its execution, or (2) that, whether or not the contract so provided, Blais and Blair were given such oppor- tunity. Either assumption would serve only to confirm the fact that the contract required past in addition to present membership. 4This proviso 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 lahoi practice) to Iegnuc, as it condition of employ- ment, membership therein, if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective bat gaining unit covered by such agreement when made." 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Not only a reasonable construction of the proviso to Section 8 (3), but also effectuation of the policies of the Act, dictates the result we reach. Approval of a contract which made it possible for the con- tracting union to require payment of past dues as a condition of future employment would have a seriously detrimental effect upon freedom of organization. The period from March 14, 1945, to May 23, 1945, to which this contract would apply, was one during which Blass and Blair and all other employees of the respondent were free to exercise without restraint the right to 'select and change representatives and the right to be or refrain from being members of any union. This freedom would be under substantial restraint if employees knew that they would have to pay, in a lump sum, diies which they were free to refrain from paying currently if the union from which they withheld support was eventually chosen. Legalization of this practice would provide a device for effectively constraining those who have not remained members of the dominant union at a time when they are under -no obligation to do so.5 In all cases where it,appeared likely, or even possible, that a maintenance-of-membership or closed-shop contract might follow the selection of a representative, the employees would be impelled to speculate as to which organization would ulti- mately win the support of the majority in order to avoid the possi- bility of being faced with the requirement of paying a large sum in back dues. Hence in actual practice the employee's right to support and select the bargaining representative he wanted would largely be reduced to the right to guess which of two or more competing unions would ultimately be chosen by the majority. Thus, approval of the contract before us would substantially impair freedom of choice at a time when the statute requires such freedom. To permit this im- pairment would make it difficult for advocates of a change in repre- sentation to present their case to their fellow employees. 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 and is invalid. Since Blais and Blair were discharged pur- suant to this clause because 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 respondent discriminated against them' in regard to the 5 Cf International Association of llfaehznists, Tool and Die Alakers Lodge No 35. et at. v N L R B., 110 F (2d) 29, 43 (App D C ), aff'd 311 U S. 72, in which the Court of Appeals stated, "The practice of antedating contracts may he legitimate or otherwise according to varying ciicumstances. Whatever its effect between the pasties , rights of third parties should not be affected arlveisely, particularly when they involve interests so unpoitan,t and,controversial as collective bargfiuung.and the closed shop. To stamp with iudicial approval a practice so questionable would invite evasion of the statute's intended protections " COLONIE FIBRE COMPANY, INC. 357 hire and tenure of their employment, discouraged membership in the CIO, encourage membership in the AFL, and interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.° MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Supplemental Decision. 6 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 effective period of this contract that these employees be discharged for failure to pay dues Since the maintenance-of-membership provision of the 1945 contract was invalid, it is unnecessary for us to determine whether, subsequent to May 23, 1945, the respondent or the AFL afforded Blais and Blair an opportunity to establish themselves as members in good stand- ing of the AFL.