Coro, Inc.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swanson had extensively circulated the petition during working hours in contravention of Respondent's posted rule. In this state of facts Spencer immediately, and without prior consultation with any of the Union's representatives and without any request from them, discharged Koenig as he had Swanson. It having been found, contrary to the allegations of the complaint, that the Union did not request the discharge of the two men, it remains only to consider the other contention that Respondent discharged Koenig and Swanson because they engaged in concerted activities. These concerted activities, although they are not specifically so termed, were obviously concerted activities "for the purpose of collective bargaining or other mutual aid or pro- tection," to employ the language of the Act. The question remains, however, whether they were protected concerted activities. The situation here is no different in principle from the more usual one where employees distribute a petition with the object of obtaining union representation or facilitating union organization. The Board has held in cases too numerous for citation that where such activity is in contravention of a valid employer rule the employer may discharge such employees providing that the motivating reason is, in fact, the violation of the rule and not the concerted activities themselves. In deciding this latter question it is usually helpful in establishing discrimination to show that the employees in question were treated differently from employees who had previously violated the rule. There is in this record, however, no evidence whatever of any previous Infraction and hence of any discharge because of such infraction. It cannot be found, therefore, that Respondent treated Swanson and Koenig disparately, or that it would not have discharged Koenig and Swanson had the nature of the petition not been related to their mutual aid or protection. In this state of the record I must, and do, conclude that the General Counsel has not met the burden of proof incumbent upon him. The presumption remains that Respondent acted legally rather than illegally. CONCLUSIONS OF LAW 1. Western Foundry Company is, and at all times relevant herein was, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Steel Workers of America, Local 2674, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] CORO, INC., and CORO, INC. OF RHODE ISLAND and LOCAL 251, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Petitioner. Case No. 1-RC-3189. June 24, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Lepie, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles] . Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. Local 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is 105 NLRB No. 110. CORO, INC. 719 a labor organization claiming to represent employees of the Employer. 3. International Jewelry Workers' Union , AFL, is a party to a collective -bargaining agreement with the Employer. Al- though its Local 18, the bargaining representative at the Em- ployer ' s plant, was served with notice of hearing , neither the International nor Local 18 appeared at the hearing . The Inter- national now asserts that it was not served with notice of hear- ing and requests leave to participate in this proceeding. We find that service on Local 18 was sufficient notice to the Inter- national with which the Local is affiliated . Although the Board customarily applies a liberal rule with regard to participation in the hearing of all parties affected , in view of our decision herein, we find it unnecessary to pass upon the International's request for a new opportunity to participate. The Employer contends that its current contract with Inter- national Jewelry Workers' Union constitutes a bar to this proceeding . The Petitioner opposes this contention on the ground that the contract contains an illegal union-security clause. In 1949 the Employer and the Jewelry Workers concluded a 3-year agreement containing union-security provisions which became effective after a union - security authorization election in December 1949. These provisions required all new employ- ees to become members of the Union within 30 days of their employment but required only the maintenance of union membership for those old employees already members of the Union. The current contract between the Employer and the Jewelry Workers was made effective immediately upon the expiration of the 1949 contract on April 1 , 1952. This contract contains the following provisions relating to union security: 10. All present employees shall maintain their member- ship in the Union during the life of this agreement as a condition of continued employment . ( Emphasis added.) 12. All part-time employees shall, as a condition of continued employment , secure a working permit from the Union at the expiration of thirty ( 30) calendar days from the date of employment , and shall continue to secure working permits at thirty ( 30) day intervals while so employed. . . . The Petitioner contends that these provisions are invalid because ( 1) paragraph 10 requires employees who were forced to become union members under an illegal union-security clause in the 1949 contract to retain that membership during the life of the 1952 contract , ( 2) paragraph 10 also requires employees who were not union members, under the mainte- nance-of -membership provisions of the 1949 contract, to be- 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come members forthwith , thereby denying them the 30-day grace period required by Section 8 (a) (3) of the Act, and (3) paragraph 12, by requiring part-time employees to secure work permits at 30-day intervals , exceeds the limits set by Section 8 ( a) (3) of the Act on union-security provisions. We find these contentions without merit . The Petitioner first contends that the union - security provisions of the 1949 agreement were illegal . These provisions , which were de- ferred until a UA election could be held , provided that employ- ees who were members of the Union ''at the time this Agree- ment takes effect" maintain their membership . The Petitioner construes this provision as retroactive in effect . We believe that the time referred to in the above -quoted phrase is the time the union - security provisions , rather than the entire agreement , went into effect , and accordingly we find that the application of the union - security provisions was properly deferred . With respect to the Petitioner ' s second contention, it is true that paragraph 10 of the current contract could be construed to mean that "all present employees " are required to be or become union members upon the effective date of the contract , thereby denying nonmembers a 30-day period within which to join the Union . However, the provision is rendered ambiguous by the apparently inconsistent expression, "shall maintain their membership ( emphasis added)," which would indicate that only members of the Union on the effective date of the contract are required to remain members of the Union during the life of the agreement . We shall, therefore , examine the circumstances surrounding the adoption and enforcement of this provision to clarify its meaning .' To the extent that Lever Brothers Companyz may be construed as inconsistent with this decision , it is hereby overruled . The only evidence introduced at the hearing concerning this provision indicates that the parties intended the provision to require continued union membership only of those employees already union members on the effective day of the contract. As thus con- strued, we find the provision to be entirely within the limita- tion of Section 8 (a) (3) of the Act. 3 Nor do we believe that the requirement of paragraph 12 that part-time employees secure working permits from the Union at 30 -day intervals exceeds the limitations contained in Section 8 (a) (3). On its face,, the clause is entirely anala- gous to the obviously permissible requirement that part-time employees pay monthly union dues . Accordingly , we find that the current contract is valid and constitutes a bar to a present determination of representatives and we shall dismiss the petition. [The Board dismissed the petition.] 'Bath Iron Works Corporation , 101 NLRB 849; Griswold Textile Print, Inc., 101 NLRB 1364. 2 97 NLRB 1240. 3 Charles A . Krause Milling Co., 97 NLRB 536. 4 Kennecott Copper Corporation, 98 NLRB 73