Otis Elevator Co.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. If, in this election, a majority of the lithographic processing employees vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit de- scribed above, which the Board, under such circumstances finds to be appropriate for purposes of collective bargaining. In the event a majority vote for the Intervenor, the Board finds the existing unit to be appropriate and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication in this volume.] OTIS ELEVATOR COMPANY and IVAN DUNFIELD and LOCAL 123, INTER- NATIONAL UNION OF ELEVATOR CONSTRUCTORS , AFL, PARTY TO THE CONTRACT. Case No. 7-CA--343. December 09, 1951 Decision and Order On September 28, 1950, Trial Examiner James R. Hemingway is- sued his Intermediate Report in the above-entitled proceeding. Fol- lowing a remand by the Board, on June 15, 1951, the Trial Examiner issued a Supplemental Intermediate Report,' finding that the Re- spondent 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 copies of the Inter- mediate Report and the Supplemental Intermediate Report attached hereto. Thereafter, exceptions were filed by the Respondent and 2 In- ternational Union of Elevator Constructors, Local 123. Local 123 and the International also filed supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at both hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Supplemental Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in the case and pursuant to Section 10 .c) of the National Labor Relations Act, the National Labor Relations ' On March 15, 1951, the Board, on its own motion , had remanded the proceeding to the Trial Examining Division to permit the General Counsel , the Respondent, and all the parties to certain alleged agreements with the Respondent, to adduce further relevant testimony concerning the several allegations contained in the complaint. 2 The Respondent filed separate exceptions to each Report. 97 NLRB No. 115. OTIS ELEVATOR COMPANY 787 " Board hereby orders that the Respondent, Otis Elevator Company, Kalamazoo, Michigan, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Encouraging membership in Local 123, International Union of Elevator Constructors, or any other labor organization, or dis- couraging membership in Local 85, International Union of Elevator Constructors, or any other labor organization, by discriminating in regard to the hire or tenure of employment, or any terms or conditions of employment, except to the extent authorized by the Act. (b) Contributing support to Local 123, International Union of Ele- vator Constructors, AFL, or any other labor organization, by dis- criminating in favor of its members or against other employees, except to the extent authorized by the Act. (c) In any like or related manner interfering -with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist Local 85 Inter- national Union of Elevator Constructors, AFL, or any other labor - organization, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain - from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Ivan Dunfield immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him, in the manner provided in the Intermediate Report. (b) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due. (c) Post at its plant in Kalamazoo, Michigan, copies of the notice attached to the Intermediate Report marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, 'This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order ," In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice before the words , "A Decision and Order," the words , "A Decree of the United States Court of Appeals Enforcing.' 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and be 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed on November 21, 1949, by Ivan Dunfield , an individual, against Otis Elevator Company, herein called the Respondent , the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board , by the Regional Director for the Seventh Region, issued his complaint dated July 11, 1950, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2 ), ( 3), and Section 2 (6) and ( 7) of the National Labor Relations Act as amended , 61 Stat. 136 , herein called the Act. A copy of the charge was duly served upon the Respondent and copies of the complaint and notice of hearing were served upon the Respondent and Dunfield. With respect to the unfair labor practices , the complaint in substance alleges that from April 1949 to the date of the complaint the Respondent had engaged in interfering with, restraining, and coercing its employees in the rights guar- anteed by the Act ; dominated and interfered with the formation and adminis- tration of Local 123 , International Union of Elevator Constructors , AFL, herein called Local 123, and contributed support thereto by encouraging membership in Local 123 and discouraging membership in Local 85 of the same International Union by discharging Ivan Dunfield, an employee , hereinafter called Dunfield, on September 26, 1949; and that the Respondent discriminated in regard to the hire and tenure of employment of said Dunfield by discharging him on September 26, 1949, because he had joined and assisted Local 85 and refused to join Local 123 and had otherwise engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. The answer of the Respondent dated July 24, 1950, denies the commission of the unfair labor practices and in substance affirmatively alleges that Dunfield has been employed from time to time by the Respondent for work in Kalamazoo and elsewhere for approximately 30 years ; that he has been generally employed by the Respondent upon construction work which is intermittent in character ; that Dunfield is and for many years has been a marginal employee in that he is rehired and laid off depending upon the availability of work and that he has at no time been discharged. Pursuant to notice , a hearing was held in Kalamazoo , Michigan , on August 28, 1950, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent , and Dunfield were represented by counsel , who participated in the hearing , were afforded full opportunity to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues. At the close of all the evidence, counsel for the General Counsel moved to conform the pleadings to the proofs with respect to minor V9riati0ll8 in names, dates , and so on, and the motion was granted . Thereafter the parties OTIS ELEVATOR COMPANY 789 argued orally upon the record. They stated that it was their intention not to file briefs and no briefs have been received. Upon the entire record in the case and from my observation of the witnesses, I make the following : - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New Jersey corporation having its principal office in the City and State of New York, having plants at Yonkers, New York, and Harrison, New Jersey, and having local offices in the State of Michigan and other states of the United States. The Respondent is engaged in the manufacture, sale, installation, and servicing of passenger elevators, freight elevators, escalators, and dumb-waiters. It purchases annually for use at its plants and offices raw materials and fabricated parts valued in excess of $1,000,000, and annually sells and installs elevators, escalators, and dumb-waiters valued in excess of $1,000,000. During the calendar year ending December 31, 1949, the Respondent delivered to its offices located in the State of Michigan, from sources outside that State, materials and fabricated parts valued at approximately $500,000. During the same period of time, the Respondent's Kalamazoo, Michigan, office received materials and fabricated parts valued at approximately $400,000, of which 90 percent was shipped in from points outside the State of Michigan. During the same period of time the Respondent's income from operations of its Kalamazoo, Michigan, office amounted to approximately $100,000. The Respondent admits that it is engaged in commerce within the meaning of the Act and I so find. II THE ORGANIZATION INVOLVED International Union of Elevator Constructors, affiliated with the American Federation of Labor, and its Locals 85 and 123 are labor organizations admitting to membership employees of the Respondent. A. The unions, the locals, and their contracts with the Respondent On September 20, 1946, the Union entered into a collective bargaining contract with the National Elevator Manufacturing Industry, Inc, hereinafter called NEMI, for a 5-year term from September 20, 1946, until October 1, 1951. This agreement, which was binding upon the Respondent, contains a provision that for certain specified work, including all that is material herein, "the Manu- facturers shall employ only members of the International Union of Elevator Constructors." This agreement also provided that it should be incorporated in, and become a part of, any agreements entered into between "The Manufacturers and locals of the Union" and that "no local agreement between The Manufac- turers and local unions shall be made changing this agreement except as here- inafter provided for." The contract contained a provision for "local option" permitting any'local to negotiate special conditions for certain kinds of work, the special conditions to be determined by a committee consisting of two repre- sentatives from the local union and one international representative and three representatives from the manufacturers. Before 1946, the territory covered by Local 85 of the Union included an area around the cities of Jackson, Lansing, and Kalamazoo. On August 13, 1946, the Union granted a charter to Local No. 123, excluding from the territory covered by Local 85 an area around the cities of Kalamazoo and Battle Creek, which area was given to Local 193. On August 21, 1946, Local 123, using a printed 986209-52-vol 97--51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form of agreement between the Union and NEMI, signed the agreement along with the Respondent and another elevator company. This contract appears to be a standard form of contract containing word for word the provisions of the contract between the Union and the National Elevator Manufacturing Industry, Inc., except that in the introductory paragraph a blank space was left for the number of the local union and blank spaces were left in the printed contract to describe the jurisdiction of the local union. The printed form used was apparently that of an expired contract, as it states that the agreement extends from November 1, 1939, to October 31, 1944' The fact that the agreement con- tained an expired date for the duration of the contract was not alluded to or explained at the hearing. B. The history of the employment of Ivan Dunfield and its termination Dunfield was employed by the Respondent at Kalamazoo in 1923 as a helper. After serving in that capacity for 3 years he was sent out on construction work as a mechanic In 1927 he joined the Union and he has been a member in-good standing ever since. The Respondent's work in the Kalamazoo area is divided into three classes : construction, service, and maintenance. Of the three classes, maintenance is the steadiest work and construction is the least steady. In about 1938 or 1939 Dunfield was put on maintenance work 2 and with the exception of about a month in 1940, following a resignation, after which he returned to work, Dunfield was on maintenance until March 1949. Before 1946 the union members were mem- bers of Local 85. In 1946 when Local 123 was granted a charter and the Kalamazoo and Battle Creek territory was taken away from Local 85, most of the employees trans- ferred their membership to Local 123 Before his termination in September 1949, as hereinafter related, Dunfield was not asked to join Local 123, and he continued to be a member of Local 85. In 1949 he was the only member of Local 85 employed by the Kalamazoo office, the rest being members of Local 123, in- cluding Frank Houman, the Respondent's superintendent at Kalamazoo before February 1950. Next to, the manager, Dunfield was the oldest employee in point of service. In March 1949 Houman took Dunfield off of maintenance and put him on service work, transferring the one man who was then on service work to Dunfield's job on maintenance. Dunfield continued on service work until September 4, 1949, at which time he was sent, on loan, to the Peele Door Company, which was under contract with the Respondent to assist in in- stalling elevator doors on one of the Respondent's construction jobs. It was not unusual for the Respondent to lend men to its subcontractors in such instances, but this was the first time in about 10 years that Dunfield had been asked to do construction work. Willard Key, a member of Local 123, who had been in Respondent's employ at Kalamazoo only for 1 year, was given the service work that Dunfield had formerly been on. Maintenance examiners are supplied by the Respondent with a maintenance instruction book, and while Dunfield was on the Peele Door Company job, Houman came to Dunfield and asked him to turn in his maintenance book. On September 26, 1949, when the Peele i As a result of the use of. the old form, the agreement of Local 123 omitted one para- graph of the Union's contract of September 20, 1946 Otherwise the provisions were the same in both 2 This work is alluded to as maintenance inspection and there is reference to the men on such jobs as maintenance examiners. OTIS ELEVATOR COMPANY 701 Door job was finished, Houman took Dunfield aside and told him that he would have to lay him off because he (Houman) had to keep the members of Local 123 busy and that Dunfield did not belong there. Between that date and the date of the hearing the Respondent called Dunfield in once or twice on temporary construction jobs. C. Concluding findings Seniority was not provided by the contract, although there is no evidence that, other things being equal , the Respondent did not take seniority into consideration in determining layoffs, and there is some evidence that it did. Houman testified that the Respondent's work fell off in September 1949, and that members of Local 123 were "naturally" given preference over anyone from another local. Houman admitted, and I find, that, in making the selection of a mechanic for layoff, the Respondent chose Dunfield because he was not a member of Local 123. The Respondent contends that it was obliged, by its contract with Local 123, to give preference to members of that local. This poses the questions, whether such a contract exists, whether it contains such a provision, and whether, if the answer to the foregoing be in the affirmative, it is a valid provision from the standpoint of compliance with the Act As stated before, the agreement between Local 123 and the Respondent was a "standard form" of agreement consisting of the terms of an agreement between the Union and NEMI with blanks to be filled in with the particular local's number and with a description of the local's jurisdictional limits. The form of agreement used by Local 123 stated that "the terms and con- ditions of this Agreement shall be complied with by both parties from the First day of November, 1939, until the Thirty-first day of October, 1944." Although this agreement was signed on August 21, 1946, the dates of the term were not altered. The contract as it reads is, therefore, for an impossible term. It cannot be determined whether the real intent of the parties was to make an agreement at will or for a definite term, and, if the latter, for what term. From such evidence as is in the record it might be inferred that any agreement made by a local would terminate with the termination date of the Union's agreement with NEMI. But the evidence does not disclose that the Union had an agreement in effect on August 21, 1946. On September 20, 1946, the Union made an agreement with NEMI carrying a 5-year term from September 30, 1946, to October 1, 1951. Any contract which the Union may have had before September 30, 1946, would, therefore, have terminated not later than that date Hence, the agreement made by Local 123 on August 21, 1946, may have been intended to be only an interim agreement extending to September 30, 1946. The standard form contains no renewal clauses; so the agreement of Local 123 cannot be considered as extended for any special term. The evidence showed that the Respondent and Local 123 were still operating under this agreement, but at best this indicates that an expired agreement was tacitly continued at will. A closed-shop provision, if any, in an expired contract not expressly renewed and not extended for a definite term would not, in my opinion, be saved by Section 102 of the Act and would be invalid after the effective date of the Act! Only the closed-shop provision in the master agreement between the Union and NEMI would have continued in effect after that date. This master agreement requires membership in the Union only and not in respective locals. Hence, even if its contract before See Salant d Salant, Inc, 87 NLRB 215. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the effective date of the Act had required membership in Local 123 as a condition of employment, Local 123 had no lawful justification after the effective date of the Act for requiring membership in that local as a condition of employment without authorization as acquired by the Act. But even if a closed-shop or union-preference provision in such a contract, as Local 123 made with the Respondent were saved by Section 102 of the Act, the Respondent's defense that it was required by this contract to give preference to members of Local 123 is without merit.- The Respondent contends that a provision for preference of members of Local 123 over members of other locals is to be found by implication in that clause of the contract which deals with scarcity of help. In making this argument , counsel for the Respondent em- phasized that the contract was "between . . . National Elevator Manufacturing Industry, Inc., ... and the International Union of Elevator Constructors, Local 123," and that therefore the local was the contracting party rather than the Union. I might point out that this agreement , although reciting that it was between NEMI and Local 123, bears only the printed signatures of the repre- sentatives of NEMI . On August 21, 1946, it was actually signed , not by NEMI, but by the Respondent and one other elevator company who were not shown ,to be authorized to sign for NEMI. Assuming, what is not too apparent from he instrument itself, that the agreement actually is one between the Respondent -and Local 123, and assuming, for the sake of argument, that this agreement could still have an effective membership -preference clause without compliance with the authorization procedure required by the Act , a question of construction of Article 9 of the contract might then be reached. This clause reads: It is agreed by the party of the second part -that in the event of their being unable to supply from their membership sufficient mechanics and helpers in any locality to meet the requirements of the party of the first part, that the party of the first part may employ mechanics or helpers not members of the party of the second part,*and that the party of the second part will issue temporary working cards to such mechanics or helpers, these temporary working cards to be renewed from week to week. And further, that these mechanics and helpers may apply for admission to the organization of the party of the second part, and may be selected to member- ship therein after being six ( 6) months on a temporary working card, if they meet the requirements of the organization. From this it is argued that it must be found that membership in Local 123 was a condition of employment unless Local 123 could not furnish enough of its own members to perform the work . The quoted clause is apparently verbatim the clause of the master contract, just as all the other provisions, except the jurisdictional provisions are. But it is to be noted that the clause of the master contract , adopted in the contract of Local 123, requiring membership as a condi- tion of employment requires membership only in the Union and not in any local. And the master contract provides that this agreement should be incorporated in, and become a part of any agreements entered into between the "Manufacturers and locals of the Union." The clause relied upon by the Respondent is, there- fore, the clause of the master agreement. The latter further provides, "No local shall, through its by-laws, constitution, or otherwise, change any of the articles or intent of this agreement." [Emphasis supplied.] Presumably , there- fore, Local 123 was retaining Article 9 merely as part of the master contract and in accordance with the intent thereof. As the master contract obviously did not use Article 9 (in the 1946 Union contract, Article 10) with the intent of requiring membership in the respective locals, it cannot be presumed that OTIS ELEVATOR COMPANY 793 Local 123 used it for a different intent.' But whatever be contended to be the interpretation of the aforesaid clause of the contract, it cannot avail here, for the Board has held that a union-security provision of a contract relied on to justify discharges must be expressed in clear and unmistakable language, and that the interpretation of the parties is not a substitute therefor.' The agree- ment of Local 123 contains no such clear and unmistakable language .6 It is contended that Dunfield was not discharged but was merely laid off for lack of work. I believe that his termination was intended to be more than a layoff, but, whatever it is called, the termination of Dunfield's services on -September 26, 1949, resulted from the fact that he was not a member of Local 123 but was a member of Local 85. Except for his nonmembership in Local 123, I am satisfied and find, Dunfield would not have been selected for layoff on September 26,1949.' The Respondent's conduct in terminating Dunfield's employ on that date was calculated to discourage membership in Local 85 and to en- courage membership in Local 123° This is proscribed by Section 8 (a) (3) of the Act. By such conduct the Respondent has interfered with, restrained, and coerced its -employees in the exercise of the rights guaranteed in Section 7 of the Act. It has likewise assisted and contributed support to Local 123 in violation of Section 8 (a) (2) by terminating Dunfield's employment on Septem- ber 26, 1949. IV. THE EFFECT OF THE 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that by terminating the employment of Ivan Dunfield on September 26, 1949, and by thereafter hiring him only for temporary con- struction jobs, the Respondent discriminated in regard to his hire and tenure of employment in violation of the Act . To remedy the situation it will be 4 Examination of the Union's bylaws, particularly Article VIII thereof, further indicate that Article 9 of the contract was not intended to mean what the Respondent contends. 5 Don Juan Co., Inc., 79 NLRB 209, enfd. as to this in 178 F. 2d 625 (C. A. 2). 6 The necessity for clear and unmistakable language also disposes of the Respondent's reliance on a custom of the Union of not importing help from the territory of other locals where there are members in the locality available . See, also, Guy F. Atkinson Co., 90 NLRB 143, where the Board said that it could not give effect to a custom which was contrary to the statute. But even if given effect, on the facts here I would not find that the custom was applicable to the situation present in this case where Dunfield was not imported from the territory of Local 85 but was left behind, in effect, when part of that local's territory was taken away from it. 4 Although Houman testified that the work fell off on September 26, 1949 , thereby sug- gesting that someone would have had to be laid off, I am not satisfied that this was the case. I note that there was sufficient work during some of the time when Dunfield was unemployed for the Respondent to call in mechanics from other territories . In any event, however, I find that if the Respondent had made a nondiscriminatory selection of a mechanic for layoff, it would not have selected Dunfield. 'A similar conclusion on somewhat analogous facts is to be found in an Intermediate 'Report in Sub Grade Engineering Company, 93 NLRB 1410. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary that the Respondent reinstate Dunfield to "his former or substantially equivalent position 9 held by him before the date of the Respondent's discrimi- nation against him without prejudice to his seniority or other rights and privi- leges, and pay him a sum of money equivalent to that which he normally would have earned between September 26, 1949, and the date of the Respondent's offer of such reinstatement, less his net earnings 10 during said period. The fact that Dunfield was in the employ of the Respondent on a temporary basis at the time of the hearing does not insure that he has been returned to the situation he was in before the discrimination against him and does, therefore, not dispense with the necessity for an offer by the Respondent to reinstate him with all his former rights and privileges. As the Respondent's violation of Section 8 (a) (1) and (2) of the Act are derivative from the violation of Section 8 (a) (3) of the Act, and as the Respondent's conduct does not appear to have arisen out of a total disregard for the purposes of the Act generally, I have no reason to believe that there is danger in the future that the Respondent will commit other types of unfair labor practices. It will therefore be recommended only that the-Respondent cease and desist from the conduct found herein to be violative of the Act and from like or related conduct. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. International Union of Elevator Constructors, affiliated with the American Federation of Labor, and its Local 85 and Local 123 are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ivan Dunfield, thereby discouraging membership in Local 85 and encouraging, mem- bership in Local 123, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By encouraging membership in Local 123 and discouraging membership in Local 85 by means of discrimination in regard to hire and tenure of employ- ment, the Respondent has contributed and is contributing support to Local 123 within the meaning of Section 8 (a) (2) of the Act. 4. By the Acts stated in paragraphs 2 and 3 above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] Appendix A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 : 9 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 , for meaning of "substantially equivalent." 10 See Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. OTIS ELEVATOR COMPANY 795 WE WILL NOT contribute support to LOCAL 123,-INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL, by discriminating in regard to the hire and tenure of employment of any of our employees because of membership or nonmembership in said Local or any other labor organization, except to the extent that membership in a labor organization may be required as a con- dition of employment by the terms of a contract authorized under the pro- visions of Section 8 (a) (3) of said Act. WE WILL OFFER to Ivan Dunfield immediate and full reinstatement to his former or substantially equivalent position without prejudice to any senior- ity or other rights or privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. WE WILL NOT encourage membership in Local 123 nor discourage mem- bership in LOCAL 85 OF INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, AFL, or any other labor organization, by discriminating in regard to the hire or tenure of employment of any of our employees, except to the extent that an agreement authorized pursuant to the provisions of Section 8 (a) (3) requires membership as a condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist LOCAL 123 or LOCAL 85 OF INTER- NATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL, 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, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of said Act. All our employees are free to become or remain members of this union, or any other labor organization, except to the extent that membership in a labor organization as a condition of em- ployment is required by a contract authorized in accordance with the pro- visions of Section 8 (a) (3) of said Act. Dated -------------------- OTIS ELEVATOR COMPANY, Employer. By ----------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Supplemental Intermediate Report STATEMENT OF THE CASE On September 28, 1950, the undersigned Trial Examiner issued his Inter- mediate Report and Recommended Order in the above-numbered case, in which the parties to the collective bargaining agreements involved in the case, other than the Otis Elevator Company, hereinafter called the Respondent, were not served with notice of hearing or given an opportunity to adduce evidence with respect to the contracts to which they were parties. On November 24, 1950, Respondent moved the Board to remand the case for further hearing, and on November 26, 1950, by leave of the Board, the International Union of Elevator Constructors, AFL, hereinafter called the International, filed a brief in support of Respondent's motion. The Board, deciding that the record was "inadequate concerning the alleged agreements requiring membership in Local 123 as a con- dition of employment and the customary practice of giving notice of hearing to 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties to contracts the validity of which is in issue," on March 15, 1951, re- manded the case to the Trial Examining Division with directions : (1) To reopen the record to permit the General Counsel and the parties to the alleged agreements requiring membership in Local 123 as a condition of employment to adduce further relevant testimony concerning the' several allegations contained in the complaint. (2) To prepare and issue an appropriate Supplemental Intermediate Report. The case having been reassigned to me by the Chief Trial Examiner, I issued an order on March 30, 1951, that the hearing be reopened in accordance with the Board's order, and my order was served on the parties to said agreement as well as upon the parties hereto. Pursuant thereto, the Regional Director for the Seventh Region (Detroit, Michigan) served notice of hearing upon the Respondent, the charging party, the National Elevator Manufacturing Industry, Inc., hereinafter called NEMI, the International, and Local 123 of said Inter- national. On April 16, 1951, Local 123 filed an answer in which it admitted the discharge of Dunfleld by the Respondent as alleged but denied that it constituted an unfair labor practice by the Respondent. On May 2, 1951, in accordance with said notice, a hearing was held in which the appearances shown above were entered. All parties were afforded opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence in accordance with the Board's order. At the opening of the hearing counsel for the General Counsel, hereinafter called GC Counsel, moved to amend the caption of the complaint by adding the name of Local 123 as a party to the contract. The motion was granted. There- after counsel for Local 123 moved to amend its answer by substituting the words "laid off" for "discharged" in the paragraph wherein it admitted that Dunfield had been discharged. The undersigned, commenting that no answer was actually necessary by Local 123, granted the motion nevertheless. Counsel for Dunfield, the charging party, stating that he was also counsel for Local 85 of the International, moved on behalf of Local 85 to intervene, but withheld his motion at the suggestion of the undersigned that he wait to see whether the evidence adduced at the hearing would require any rebuttal evidence by Local 85.' At request of the parties, a time was set in which to file briefs. This time was twice extended, the last time to June 4, but before that date a brief was received only from the General Counsel. Within the time for filing of briefs a' stipulation was received from the parties concerning testimony which was expected to be adduced by Local 123. This was the proposed testimony of Edward P. Lee, who testified at the original hearing. The reason for offering the stipulated testimony of Lee does not appear in the stipulation nor -does it appear in the record, but a letter to me from counsel for Local 123 explained that Lee was unable to testify at the reopened hearing because of a heart.ail- ment. As all parties of record in the proceeding joined in the stipulation, it is hereby received On June 5, 1951, after the time for filing of briefs with the Trial Examiner, a brief from counsel for Local 123, not addressed as directed in the record, reached the undersigned. Despite its tardiness, it has been received and considered.' i Local 85 was not a signatory to the agreements, whose language is in issue and hence did not•come within the scope of the Board's order 2 On June 8, 1951, a brief arrived from the Respondent. Although it is not entitled to be considered,-because it was not even mailed hefoie the expiration of the time fixed for filing, I have read it and find nothing therein causing me to change niy opinion OTIS ELEVATOR COMPANY 797 Upon the entire record in the case and from his observation of witnesses, the undersigned makes the following: SUPPLEMENTAL FINDINGS OF FACT The principal issue in this case is whether or not, at the time of the layoff of Ivan Dunfield, Local 123 had a contract with the Respondent which required membership in that local rather than membership merely in any local of the same International. Local 123 adduced evidence concerning the history of its contract-making. Before 1929, local unions and contractors made local agreements . In that year the International instituted the practice of making a master contact with NEMI , such as is referred to in the original Intermediate Report. New master contracts were made each 5 years thereafter until 1944, when the 1939 agreement, then expiring, was merely extended indefinitely with no changes to be requested for the duration of the war and 6 months thereafter. No further changes were made until in August 1946 when the International notified NEMI of intent to negotiate a new agreement. The new 5-year agreement was executed on Septem- ber 20, 1946, as stated in the original Intermediate Report. These facts explain why on August 21, 1946, Local 123, which was bound by the terms of the International's agreement, made use of a form of master agreement for the period of November 1, 1939, to October 31, 1944. As extended, that was the only master agreement then extant. There is no evidence that Local 123 entered into any subsequent agreement with the Respondent. Local 123, in its brief, asserts that "Local Unions do not execute `local agreements."' This presumably refers to the fact that locals may not vary the terms of the master contract and may supplement it only -on the subjects specifically authorized in the master agree- ment. The first permissible local addition is to fill in the blanks left in the master agreement on the scope of a local 's jurisdictional territory which is defined therein as follows : The primary jurisdiction of any Local shall include only that territory in which its members will agree to travel on their own time. The secondary jurisdiction shall include the balance of the territory now within the jurisdiction of the Local Union. The second permitted subject of local agreement covers "special conditions" for three classes of work. These include such items as shift work and working hours on repairs and contract service Once a local has agreed upon these supplemental matters, they do not, as a rule, thereafter sign any further master agreements. Since the local is authorized to agree only on limited subjects, there is no necessity for it to execute further master agreement forms unless it wishes to make changes or additions to the purely local portions , for the provisions of each successive master agreement are binding upon the locals without their signatures . The master agreement of September 20, 1946 states : This agreement shall be incorporated in and become a part of, any agree- ments entered into between The Manufacturers and locals of The Union and no local agreements between The Manufacturers and local unions shall be made changing this agreement except as hereinafter provided for. From the foregoing , Local 123 argues that the agreement of 1946 became incorporated in and a part of the agreement of 1939, a form of which it had signed as related in the original intermediate Report, and that "they [the 1946 master. agreement and the agreement signed by Local 123] are not only incorporated by reference one with the other but they are construed and in- 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terpreted by the parties as one instrument." For several reasons, I believe that this argument is inaccurate. The language of the master agreement above quoted apparently refers to future agieentents entered into by locals and the manufacturers rather than past ones which would have been covered by earlier master agreements. Ordinarily, a later writing is not incorporated by reference into a former writing, but just the reverse. By this I do not mean that the agreement of Local 123 with the Respondent, to the extent that it applies to local subjects, to wit, the definition of primary jurisdiction, was voided by the later master agreement, The execution of the master agreement is analogous to the enactment of a law of general application. It becomes the set of rules by which the parties subject to the authority or sovereignty of the enacting body are bound. As long as the local agreement on local con- ditions does not conflict with the later master agreement, the local agreement is unaffected by the later master agreement. It is the argument of Local 123 that the master agreement and the local agreement are to be construed together as one instrument, even though they be executed at different times, and from this, Local 123 reasons that the lan- guage of the master agreement should be read as though it were the language of the local. According to this line of reasoning, Local 123 contends that the closed shop provided for in the master agreement must be construed as a closed shop for each individual local. This, of course, does not take into account the fact that there is no obligation on the part of locals to sign any agreement at all and there may be some that have not. Is it the argument of Local 123 that the master agreement in the latter instance would still read as an agreement of the local? I believe not. But even if such a question did not arise because it was customary for all locals to fill in the blanks for definition of jurisdiction and to sign a form of master agreement, I still would be unable to read the agreement as providing for local closed shops. The master agreement provides, "The Manufactures shall employ only mem- bers of the International Union of Elevator Constructors." Local 123 argues that there is no such thing as "membership in the International," that it is possible to have membership in the International only by having membership in a local. Although I would not read the agreement as calling for a member- ship in the International without membership in a local, I cannot construe the above language of the agreement to mean that each local shall have a closed shop. The limitation to employment of members of the International Union, excludes those who do not fit that general description, that is to say, members of no union or of some other international union. The language of the master agreement apparently does not discriminate between locals and any manufac- turer may employ any member of any local of the International Union. Local 123 calls attention • to its constitution in urging that it should be construed along with the contract, in order to give the contract the meaning which it advances. The constitution is not a part of the agreement and is not made a part of it by reference therein. The constitution may be binding upon mem- bers of the Union but it is not binding upon manufacturers. Local 123 calls attention to the language of specific clauses of the master agree- ment, in addition to the one above-quoted, in further support of its argument. For example, it quotes paragraph 3 of Article 1 of the master agreement : In the event there are no Union men available or qualified for this class of work the Local Union of Elevator Constructors will issue temporary working cards to men available or qualified to do such work. It is argued that "members of the Union" means "members of the Local Union." In the preamble to the master agreement, it is stated that OTIS ELEVATOR COMPANY 799. The International Union of Elevator Constructors, [is] hereinafter known as The Union.. . Because of this and because I observed that where a local union is intended to be referred to, the master agreement uses the word "local" as an adjective prefix, I find no merit in the contention that such language requires membership in a given local. To me, the clause means that, where members of the International are not available, manufacturers may employ members of other international unions or non-union men. Paragraph 6 of Article 1 of the master agreement is referred to in support of the contention that local closed shops are provided for. This paragraph reads : Where competent men are not available to lay car floor covering, it is agreed that The Manufacturers may employ others to do this work. The Union may issue temporary working cards to such men. In its brief, Local 123 argues that, because only local unions issue temporary working cards, this necessarily means that the local must issue them even to members of other locals. The language quoted must be considerably stretched in order to infer from it that local closed shops are provided for. The language here no more creates a local closed shop than that from paragraph 3 quoted above. Other clauses of the master agreement are likewise referred to a However, I find that none is any more specific than the one quoted, and they do not change my original conclusion that there is no provision for closed-shop local unions. It is further argued that there is a custom of giving preference in work and layoffs to members of the local where a particular job is being performed. I am satisfied that even if such a custom exists and even if such a custom could prevail in the determination of the question as to whether or not there is a local closed shop, this custom would not affect Dunfield. I believe the custom applies to give preference to members of the local where the work is being per- formed because they are residents of that area, whereas members of other locals would normally have to be imported from another area. As I pointed out in my original Intermediate Report, Dunfield never was a nonresident of the juris- dictional area of Local 123. Originally a member of Local 85, whose juris- diction included the Kalamazoo area, which area in 1946 was given to Local 123, Dunfield became, by virtue of the new charter to Local 123, a nonresident of the territory of Local 85, his own local, rather than of Local 123. But whether or not-the custom may have been applied to any situation comparable to Dunfield's', I repeat what I said in my original Intermediate Report, that before the Board will find a requirement of membership in a particular union, in this case in a particular local union, there must be clear and unmistakable language in the contract requiring it. The reason for this is not because of an unwillingness or inability on the part of the Board to construe contracts in accordance with the ordinary rules of construction, but rather it is for the protection of individual employees who are not expected to be students of semantics. Employees are entitled to know by clear and unmistakable language in the agreement that their employment tenure depends upon membership in a particular union or particular local. I find in this case no such clear and unmistakable language. In the brief of Local 123 I am accused of having ignored the interpretation and construction of the parties. It will appear on page 6 of my original Intermediate Report, in lines 14 to 20, that I not only did not ignore the argument of interpre- tation and construction, but I rejected it for the reasons here stated. In The Briefs of both Local 123 and Respondent misquote the 1946 contract by inserting the word "local" In some quotations where that word does not appear in the agreement in evidence. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Fireman Manufacturing Company, 69 NLRB 19, there was language in the contract which could more easily be interpreted to call for a closed ( or union) shop than the local can claim in this case ; but the Board rejected the argument that the interpretation placed on the ambiguous provision of the contract should prevail, saying, "In view of the stringent requirements of closed-shop provisions, it is not too much to require that the parties thereto express the essentials of such provisions in unmistakable language." Although claiming that the agreement signed by Local 123 was "a mere supple- ment or addition to the Standard Agreement on a local basis," that local, ` in its` brief, takes the inconsistent position that the standard or master agreement is the local's agreement and should be read as the language of the local rather than of the International . My finding in my original Intermediate Report that the local's agreement was for an indefinite or impossible term was based on the hypothesis, made for the sake of argument , that there could be here such a thing as an agreement by the Local for a local closed shop, as distinguished from a master agreement to which the Local was at liberty to make certain additions. It appears quite clear that, except for the jurisdiction of work definition, the local had no agreement of its own . It was already bound by the terms of the master agreement. Its signing a blank form of such master agreement gave the provisions of that agreement no greater or different effect, except insofar as the master agreement specifically authorized additions and such additions were made. Local 123 contends that, assuming for the sake of argument that only the master agreement exists, "since under Article XII , territorial jurisdiction of the local union is important in that it is a part of the wage rate, the elevator con- structor member feels that it is only natural that he should employ and prefer for employment , members of the local having territorial jurisdiction over the job . . ." and the "elevator manufacturer is merely carrying out a closed shop agreement to hire members of the International , and uses the yardstick or criterion for employing the local that has the territorial jurisdiction." The employer's feelings are not a part of the agreement and need not be considered. But if this argument means that the employer is only doing that which comes naturally when he employs members of the local having jurisdiction in the area where the work is being performed, and is discriminating on the basis of resi- dence rather than membership in one local or another , I might point out that it would be just as natural to employ any member of the International who lives in that area on a permanent basis whether he is a member of one local or another ; and this is exactly what was done in Dunfield's case because he lived in that area and had been in the employ of the Respondent for the major part of 27 years until his layoff in September 1949. He might have continued to be so employed if the Respondent had not during that year begun to treat him as "not belonging." The discrimination against Dunfield was not on the basis of residence ; it was clearly on the basis of his Local 85 membership rather than Local 123 membership. Local 123 also argues , wholly outside the proper scope of its position in the case, that the Respondent should not be held to have violated the Act without a showing of illegal motive , and it argues that this was not shown . Laying Dun- field off because he was not a member of Local 123 shows a discriminatory motive, which here is also an illegal motive, as the layoff is not justified under the proviso to Section 8 (a) (3) of the Act. That Respondent acted under a mistake or misconception of law and believed in good faith that it was not violating the law is immaterial. If intent is needed at all , it is intent to commit the act which in fact is unlawful , not an intent that the law be violated. I-find the cases cited in the brief of Local 123 inapposite. WHITINSVILLE SPINNING RING COMPANY 801 Local 123 argues that I gave no effect to the International's closed-shop con- tract with NEMI. No effect was needed to be given. Its validity may be con- ceded, but because Dunfield was already affiliated with the International and because the discrimination arose not out of his affiliation therewith but only out of his belonging to Local 85 rather than Local 123, the closed-shop provision of the master agreement does not affect the issues here. - WHITINSVILLE SPINNING-RING COMPANY and UNITED STEELWORKERS or AMERICA, CIO. Case No. 1-CA-998. December 09, 1951 Decision and Order On July 26, 1951, Trial Examiner Reeves R. Hilton 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions and modifications : 2 1. We find, in agreement with the Trial Examiner, that the Respond- ent violated Section 8 (a) (5) and 8 (a) (1) of the Act. As found by the Trial Examiner, the Board, on January 30, 1951, conducted an election among the Respondent's production and maintenance employees. The results of that election, as determined by the Board, were 39 ballots cast for the Union, 38 ballots cast against the Union, and 1 ballot void. The latter ballot was marked with an "X" in the "No" square and a single diagbnal line, partially erased, in the "Yes" square. On April 4, 1951, the Board certified the Union as the exclu- sive representative of the Respondent's employees. Thereafter, on April 16, 1951, the Respondent refused to recognize, or bargain with, the Union. Its position, as stated at that time and at the hearing, is ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston , Reynolds, and Styles] 2 The Intermediate Report contains two misstatements of fact or inadvertences, neither of which affects the Trial Examiner's ultimate conclusions or our concurrence therein. 'However, we note the following corrections: (1) During 1950, the Respondent purchased raw materials valued in excess of $200,000, rather' than in excess of $2,000,000 ; and (2) the Respondent filed its exceptions to the Regional Director 's report on challenges on February 15, not on February 18. 97 NLRB No. 118.