Charles A. Krause Milling Co.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free-flow of commerce. V. THE REMEDY It having been found that the Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. As to McClellan, it will be recommended that the Union notify the Company and McClellan, in writing, that it has no objection to his employment by the Company without discrimination because of his nonmembership in good stand- ing in the Union. As to the Company it will be recommended that it reinstate McClellan to his former or substantially equivalent position without prejudice to his seniority or other former rights and privileges. It will be recommended that the Company and the Union, jointly and severally, make McClellan whole for any loss of pay incurred by reason of the discrimination against him. Exact computations shall be in accordance with the Board's usual policies. (F. W. Woolworth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.) The Union may terminate further: accrual of back pay by notifying the Company that it has no objection to, and permit- ting, McClellan's employment on a nondiscriminatory basis ; the Company by employing McClellan nondiscriminatorily. Since the existing collective bargaining contract, dated October 15, 1949, and subsequently extended, contains an invalid union-security clause, it will be recommended that the parties be ordered to remove this clause from their agree- ment and to cease giving effect to it e It will also be recommended that the Company be directed, upon reasonable request, to make all pertinent records available to the Board and its agents to expedite compliance. [Recommended Order omitted from publication in this volume.] I The General Counsel has not requested in his brief, and I assume for adequate reason, that the remedy for the contract illegality be any broader than removal of the invalid clause. Cf. Julius Resnick, Inc., 86 NLRB 38; Salant d Salant, 87 NLRB 215 ; and Strauss Stores, 94 NLRB 565. CHAIILES A. KRAUSE MILLING Co. and LOCAL No. 9, INTERNATIONAL UNION OF BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS, CIO, PETITIONER. Case No. 13-RC-1928. December 13, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herman J. DeKoven, 97 NLRB No. 75. CHARLES A. KRAUSE MILLING CO. 537 hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case,2 the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer, the Firemen, and Local 244, Bakery and Confec- tionery Workers International Union, AFL, hereinafter called the Bakers, assert that their current contracts constitute bars to this pro- ceeding. This the Petitioner challenges on the ground that each of the contracts contains an illegal union-security clause. The Bakers and the Firemen have separately represented the pro- duction and maintenance employees and the powerhouse employees, respectively, since 1942. The Board .certified the Firemen and the Bakers as authorized to make union-security agreements as set forth in Section 8 (a) (3) of the Act, on October 11, 1948, and November 12, 1948, respectively.' The current contracts are dated October 7, 1950 (Bakers), and October 25, 1950 (Firemen) ; and the union- security clauses therein are substantially the same as those contained in the separate contracts which have been in effect between the parties since 1942. Our findings with respect to the powerhouse unit and the employees therein (see paragraph 4), render it unnecessary for us to consider the legality of the Firemen's union-security clause. The union-security clause in the contract between the Employer and the Bakers reads as follows : All employees who are members, or become members of the Union, must remain in good standing during the life of the agreement as a condition of their employment. All new employees of the .i The hearing officer referred to the Board for ruling the motions made by the Employer and an intervening union, Local 125, International Brotherhood of Firemen and Oilers, AFL, hereinafter called the Firemen The Employer questioned the sufficiency of the Petitioner 's showing and moved to dis- miss the petition in toto. In the alternative, the Employer moved that the Board make an "authentication check" of the Petitioner 's authorization cards. The Board has con- sistently held that the showing of interest is an administrative matter not subject to subsequent challenge at any stage of a proceeding . Therefore , the motion of the Employer is hereby denied. Northern Redwood Lumber Company, 88 NLRB 272 ; J. P. Stevens h Co , Inc., 93 NLRB 1513. The Firemen moved to dismiss the petition insofar as the powerhouse employees are concerned, on the ground that a substantial turnover of such employees occurred since the filing of the petition herein, and therefore any showing of interest the Petitioner may have made among such employees would neither be current nor adequate . In view of our findings in paragraph 4, it is unnecessary to rule upon the motion of the Firemen. 2 The Employer 's request for oral argument is hereby denied, as the record and the Employer's brief, in our opinion, adequately set forth the issues and the positions of the parties. 3 Firemen , 31-UA-594 ; Bakers, 13-UA-1969. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing classification shall become members of the Union after a probationary period of 30 days, as a condition of their employ- ment. This clause, though according to new employees the 30-day grace period provided for in Section 8 (a) (3) of the amended Act, does not accord the same 30-day grace period to old employees who already were members of the Union on the effective date of the contract. The Petitioner, relying upon the Worthington Pump case 4 and several later cases explicating the Worthington Pump doctrine,5 contends that this clause is unlawful because it exceeds the limited form of union security permitted by Section 8 (a) (3) of the Act. Opposing the Petitioner's contention, the Employer maintains that Section 8 (a) (3) makes the 30-day grace period mandatory only for employees hired after the effective date of the contract containing the union-security clause. Its ,position, the Employer asserts, is sup- ported by the legislative history of the amended Act, which history we are urged to reexamine. In effect, therefore, the Employer challenges the correctness of the Board's interpretation of the proviso to Section 8 (a) (3) as set forth in the Worthington Pump line of cases. The precise point raised by this Employer was neither briefed nor argued before the Board in the Worthington Pump case. In the Worthington Pump case, the union-security clause provided that employees who were members of the union on the effective date of the clause must maintain their membership in the union. No grace period was permitted for old employees. Pursuant to its then current interpretation of the proviso to Section 8 (a) (3) ,6 the Board decided that the requirement of maintenance of union membership during the first 30 days of the contract exceeded the form of union-security per- mitted by the proviso. In essence, the *Board's prior interpretation of this proviso held that no employee could be required to be a member of the union until 30 days after the beginning of his employment or until 30 days after the effective date of the agreement, whichever date 4 Worthington Pump and Machinery Corporation, 93 NLRB 527. - '6 Rock-Ola Manufacturing Corporation, 93 NLRB 1196 ; Blue Ribbon Creamery, 94 NLRB 201. 6 In its pertinent parts Section 8 (a) (3) of the Act as amended provides : "It shall be an unfair labor practice for an 'employer-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 any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, ( 1) if such labor organization is the rep- Tesentative of the employees as provided in Section 9 (a), in the appropriate collective- bargaining unit covered by such agreement when made, . . . and (ii) unless following an election held as provided in Section 9 (e) within 1 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 organ- ization to make such an agreement :. . [Emphasis supplied.] CHARLES A. KRAUSE MILLING CO. 539 was later. This meant that the earliest date any employee was re- quired to be a member of the union was on the thirtieth day following the effective date of the contract. Upon reconsideration of the Board's prior interpretation as applied in the Worthington Pvemp case and the cases following, we think that it was erroneous to the extent that it extended a 30-day grace period to those persons already employed on the effective date of the con- tract who already were members of the union. For the reasons here- inafter appearing, the correct interpretation, we now believe, is one 'whereby the 30-day grace period must be accorded only to those employees who are not members of the union on the effective date of the union-security clause of the contract, and to new employees hired after said effective date. Several factors call for the present interpretation. Foremost among them is the legislative history of the "union shop" proviso in Section 8 (a) (3) of the amended Act? That part of the proviso which de- scribes the permissible degree of union security reads : "that nothing in this Act . . . shall preclude an employer from making an agree- ment with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agree- ment, whichever is the later, . . . " [Emphasis supplied.] This part of the amended Act originated in the Senate," except that, as adopted in conference, the phrase, "or the effective date of such agreement, which- ever is the later" was added. Because the Senate passed the bill with- out that phrase, it properly may be concluded that the additional words were inserted at the instance of the House of Representatives, especially as similar phraseology was used in one of the alternative forms of union security permitted in H. R. 3020,9 as originally passed by that body. Consideration of the House version, therefore, would appear to shed light on the meaning of the proviso; the parts here pertinent read : Section 8 (d) : "... the following shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act : (4) . . . making effective and carrying out, provisions of a collective bargaining agreement . .. whereby the Employer ob- ligates himself in the following respects : . (b) Not to retain in his employ in such unit any employee who fails to become a member of such organization within not less than 30 days after his employment, or within not less than 30 ' See footnote 6, supra e S. 1126, 80th Cong, 1st Sess. 8 80th Cong , 1st Sess ( 1947). 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days after the dates such provisions become effective, which last occurs, or who, after having become a member within such period, fails to maintain his membership therein; ..." [Emphasis sup- plied.] From the usage of the language "who fails to become a member," it appears that employees already members of the union were not sub- ject to the first two alternatives, namely, acquiring membership (1) within 30 days after employment, or (2) within 30 days after the effective date. Thus, we conclude that only new employees and em- ployees who were not already members of the union were to receive a grace period of 30 days. If this interpretation of the "union-shop" language of the House bill is carried over to the similar language in the amended Act, there is definite basis for holding the 30-day grace period of the Act inapplicable to employees who already were mem- bers of the union on the effective date of the agreement. Moreover, the alternative form of union security permitted in H. R. 3020 provided that a 30-day grace period must be accorded to employees who already were members of the union on the effective date of the contract. By not specifically adopting this provision in the final lan- guage of the amended Act, Congress appears to have indicated that it was not mandatory to extend to such member-employees a 30-day grace period for temporary escape. In amending the union-security proviso in Section 8 (3) of the Wagner Act,10 Congress was primarily concerned with the evils thought inherent in the "closed shop," whereby applicants had to be members of the union before being hired, or employees were required to join the union at once to maintain their jobs. As a remedial meas- ure, the above underlined words were added to the Wagner Act union- security proviso. Thus, in hiring, membership cannot now be a con- dition precedent to employment, nor must nonmember employees im- mediately join the union to maintain their jobs; in both instances 30 days are given before the requirement of joining the union may be imposed by contract. Nowhere in the legislative history of the 1947 amendments do we find Congress manifesting interest in extending an escape period to those employees who already were members of the union on the effec- 10 49 Stat 449 In full , the Wagner Act Section 8 (3) provided : "It shall be an unfair labor practice for an employer-by discrimination in regard to hire or tenure of employ- ment 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 701-702), 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." CHARLES A. KRAUSE MILLING Co. 541 Live date of a union-shop agreement. However,the record does abound with evidence that Congress did intend to accord to newly hired em= ployees and nonmember entployees already employed this grace period before they may be required to join the union. This is emphasized by the constant and exclusive reference to the hiring process and to new employees. For example, Senator Taft, sponsor of the Senate Bill,'l on April 23, 1947, stated : The p'rovisions of the [Senate] bill regarding the closed shop . .. present a substantial change in the present law. They present, I think, so far as I have been able to study the House bill, very much the same change as has been made in the House bill. They do not abolish the union shop. They do abolish the so-called closed shop. . . . A union shop is defined as a shop in which the employer binds himself not to continue anyone in the employment after the first 30 days unless he joins the union. In other words, an employer may employ anyone whom he chooses to employ, but after thirty days such employee has to join the union or else the employer can no longer employ him. 12 Analogous statements by other legislators serve to demonstrate that Congress legislated solely with respect to employees not members of the union." Persuasive also is the fact that in permitting the insertion of the union-security clause under the 1947 amendments, Congress required (1) that the union be the collective bargaining representative of the employees in the unit concerned, and (2) that the union shall have been authorized to make such a union-security agreement by at least a majority of the eligible voters in the unit. Congress further pro- vided for a union-security deauthorization election by which this authority could be rescinded. Given this situation wherein Congress prohibited a compulsory union-membership requirement until after its authorization by a majority of the employees affected, we do not believe that Congress contemplated according the 30-day grace period to employees who already were members of the union and who, in all likelihood, would favor compulsory union membership 14 11 S 1126, 80th Congress, 1st Session. 12 93 Cong Rec. 3952. 13 Congressman 'Mead, 93 Daily Cong. Rec. A2011 stated that • ". . . under the union shop an employer may hire anyone of his choosing, but that person must become a member of the shop union within it given period, usually thirty days . . the employee has thirty days to decide whether lie or she cares to join the Union " Similar statements were made by Congressmen Smith (Ohio), 93 Cong. Rec. 3620 and Magnuson , 93 Cong. Rec A2668; and by Senator Ball, 93 Cong . Rec. A2252 14 Although the union -security authorization provision has recently been excised from the Act ( Public Law 189, 82d Cong., 1st Sess, effective October 22 , 1951 ), to save the time and money of the Board because such elections "have almost always resulted in a vote favoring the union shop" ( H Rep. No. 1082 , 82d Cong., 1st Sess. ), the effect and 1947 purpose of that provision cannot be overlooked in interpreting the Section 8 (a) (3) provisos of which it was originally a part 542 DECISIONS OF NATYONAL LABOR RELATIONS BOARD A further factor strengthens our conviction that Congress could not have intended to -affect the membership obligations of those em- ployees who already ,were members of a anion at the effective date of the contract. A most illogical and impractical result follows from according the 30-day grace period to such employees. Under the usual union-shop clause sanctioned by Section 8 (a) (3), these em- ployees can be required to be members of the union thirty-days after the effective date of the contract. We therefore perceive no rational purpose, nor do we now find support for, an interpretation which would permit union members to withdraw from the union during a brief 30-day period and which, in almost the same breath, would re- quire them again to become members of the union at the close of the same 30-day, period. That requirement of the Board's earlier inter- pretation might soon lead to results incompatible with the labor stability sought to be achieved through collective bargaining agreements. Moreover, the other proviso to Section 8 (a) (3)15 makes it clear that under a union-shop agreement employment can be terminated only for failure to tender dues."' The purpose of this proviso was to eliminate "free riders." 17 An interpretation* of the "union shop" proviso to Section 8 (a) (3) which would permit prior union members a brief "free ride" for the first 30 days of a contract is therefore incon- sistent with the intent of the second proviso of the same section. For the foregoing reasons, and to the extent indicated above, we hereby overrule our decision in the Worthington Pump case and the cases following (see footnotes 4 and 5). In modifying the decisions in the Worthington Pump case, we are mindful of the fact that the union-security clause in that case provided for maintenance of mem- bership, a lesser form of union security than the union shop. It is clear that under such a clause, as under a union-shop provision, a grace period need not be accorded to an old employee who already was a member of the union on the effective date of the contract 18 We find, therefore, that the Bakers' contract would under ordinary circumstances constitute a bar to a present determination of repre- 15 This proviso to Section 8 (a) (3) provides : "That no employer shall justify any discrimination against an employee for nonmembership in a labor organization -( B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues or the initiation fees uniformly required as a condition of acquiring or retaining membership." 16 See footnote 6, supra. 11 See, for example, Senator Taft, on April 23, 1947, 93 Cong. Rec. 3953 . In speaking of the second proviso of Section 8 (a) (3), he stated : "In other words, what we do, in effect, is to say that no one can get a free ride in such a shop." 11 The Conference Report on the 1947 amendments ( House Report No 510. 80th Cong., 1st Sess., page 41 ) shows that the union shop was not intended to be the exclusive form of union security, permissible under the amended Act . For an analogous situation under the Wagner Act , see Public Service Company of Colorado , 89 NLRB 418. CHARLES A. KRAUSE. MILLING co. - 543, sentatives. However, in view of the fact that this contract has ex-, pired, we shall direct an election in the production and maintenance, unit hereafter set forth 19 We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7). of the Act. 4. The Petitioner requests that the Board find appropriate a com- bined unit of all production and maintenance employees, including powerhouse employees. The Employer, Bakers, and Firemen contend that the separate, existing contract units of production and mainte- nance employees and of powerhouse employees should be retained. The Employer is engaged in dry corn milling, with its sole plant at West Milwaukee, Wisconsin. Because of the nature of the process, the plant, during peak seasons, operates on a 3-shift basis, 7 days per week. There are approximately 128 employees in the present pro- duction and maintenance unit and 7 employees in the powerhouse unit. The plant itself consists of a number of buildings, one of which, the powerhouse, is about 75 feet from the main building. Live steam for use in milling processes and for beating the plant is generated in the powerhouse, which is equipped with 3 boilers. The powerhouse also contains air compressors and water pumps. No electric power is generated at the plant. Four firemen rotate their shifts so as to cover the entire week. Also employed in the powerhouse, but working only during the day shift, are 2 powerhouse maintenance men and 1 oiler maintenance man.20 The record discloses that not only is the average straight time wage of the powerhouse employees greater than that of production and maintenance employees, but powerhouse em- ployees average 10 percent more overtime work. Powerhouse em- ployees have separate locker and rest-room facilities, located in the powerhouse building, and they are separately supervised. Unlike employees in the production and maintenance unit, who are generally unskilled when hired, the Employer requires that appli- cants for positions in the powerhouse be experienced. The record shows that powerhouse maintenance employees as a group are more skilled than the plant maintenance employees. Vacancies in the powerhouse unit are not filled by employees in other parts of the plant, but are filled by promoting other powerhouse employees or by hiring new workers. The distinctiveness and homogeneity of the powerhouse employees as a group is further emphasized by the ex- istence of a separate seniority system for the group and by the lack, of interchange of employees between the powerhouse and other de- 19 W. S. Tyler Company, 93 NLRB 523. 29 The record discloses that although the powerhouse maintenance men spend some time in repair and maintenance work in the main building , the major portion of their working time is spent in the powerhouse. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partments. The fact that the steam produced in the powerhouse is indispensable to the production process does not destroy the func- titonal cohesiveness of the -powerhouse group.' Upon the entire record, it appears that the powerhouse employees are a group such as we have usually held may appropriately be included in the pro- duction and maintenance unit or be separately represented.22 How- ever, because the powerhouse employees are currently represented by the Firemen, we shall exclude them from the production and mainte- nance unit, and as the Petitioner has made no showing of ,interest .among the powerhouse employees, we shall not direct a separate elec- tion among these employees.23 We find that all production and maintenance employees at the Employer's West Milwaukee, Wisconsin, plant, including mill-, rights, sweepers, shipping and receiving department employees, and electricians, but excluding all powerhouse employees (firemen, oiler maintenance man, and powerhouse maintenance employees,), head miller, first millers, shipping clerk, bagroom foreman, corn unloading foreman, packing foreman, adhesive plant foreman, head millwright, -head electrician, general office and clerical employees, laboratory and research employees, and all guards, professional employees, and ,supervisors within the meaning of the Act,2¢ constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] - =Armour and Company, 88 NLRB; 309; Industrial Rayon Corporation, Covington, Vir- ginia, Plant, 87 NLRB 4; Baugh and Sons Company, 82 NLRB 1399 12 Cadillac Motor Car Division, Cleveland Tank Plant, General Motors Corporation, 94 NLRB 217; Owens-Corning Fiberglas Corporation, 81 NLRB 441. 23 Mullins Lumber Company and Schoolfield Industries, Division of Mullins Lumber Company, 94 NLRB 28; Chase Aircraft Company, Inc., 91 NLRB 288. 24 The composition of this unit was agreed upon by all parties in the event the Board excluded the powerhouse employees. THE DE LAVAL SEPARATOR COMPANY and OFFICE EMPLOYEES INTER- NATIONAL UNION, LOCAL 112, AFL, PETITIONER . Case No. 2-RC- 3817. December 13, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Lloyd S. Greenidge, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 97 NLRB No. 54.