Argonne National Laboratory

ARGONNE NATIONAL LABORATORY 375 :Simmers, Roscoe Truitt, Dorothy Worrall, Anna M. Sinagra, Frank Turko, Margaret Vari, Helen .Smyjowski Leon M. Wallace, James B. Volzone, Victor Stello, Anthony Wallace, Mildred Yacucci, Philip J. Sterling, Henry E., Jr. Wilkins, George Yermak, Stanley W. Sutton, Ora E. Williamson , Robert J. Zielinski, Stanley Tindall, Ida Wolf, Jack Zimmerman, Virginia Toner, Peter Argonne National Laboratory and Argonne Guards Union, Peti- tioner. Case No. 13-RC-6142. March 25, 1959 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 Albert Kleen, hear- •ing 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, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 1 involved claim to represent certain =employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: The Intervenor advances as a bar a contract which it executed .jointly with an affiliate, Argonne Guards Union, Local No. 1, and the Employer. As the contract-bar issue was raised by the con- .tentions of the parties, we have, pursuant to well established Board -policy, examined the union-security provisions of the contract.2 They provide in part : All guards shall, within ... (30) ... days ... following the beginning of their employment . . . become members of the Union . . . ; provided, however, that the Laboratory shall not be required to discharge ... any guard ... if membership is denied to the guard or terminated for reasons other than fail- ure ... to tender the periodic dues and initiation fee uniformly required . . . . Any guard terminated for failure to join the Union shall not be rehired as a guard during the life of this Agreement. [Emphasis supplied.] International Guards Union of America intervened on the basis of a contractual .Interest. ' Foothill Electric Corporation, 120 NLRB 1350. 123 NLRB No. 50. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the Keystone case,3 the Board announced the rule that, for the purposes of contract bar, a union-security clause must conform on its face to the requirements of the Act. We believe that the added union-security provision that "Any guard terminated for failure to join the Union shall not be rehired as a guard during the life of this Agreement" can reasonably be construed as encouraging union membership beyond the limits permitted by the Act. Section 8(a) (3) is expressly designed to protect employees against discrimi- nation in choosing whether or not to become union members, with the proviso that union-shop clauses in a contract are permitted within strictly circumscribed limits. Under the terms of the Act, the provision in question appears discriminatory against any guard once discharged for failing to comply with the union-shop clause,' in that he may not be hired as a new employee during the entire balance of the term of the contract even though he is later willing to fulfill any valid union-security requirement.5 Accordingly, we find that the union-security clause, as written, violates the rules of the Keystone case,6 and thereby removes the contract as a bar.7 4. We find that the following employees of the Employer consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All guards below the rank of corporal in the Chicago, Illinois, area,, excluding super- visors as defined in the Act." [Text of Direction of Election omitted from publication.] MEMBER JENKINS, dissenting : I am unable to agree with the majority that the union-security provision in the contract between the Employer and the Intervenor is invalid on its face and that therefore the contract may not serve as a bar to this proceeding. Specifically, the majority finds that a clause in the union-security provision to the effect that any guard terminated under the terms of this agreement "shall not be rehired as a guard during the life of this Agreement" is invalid because it encourages union membership beyond the limits permitted by the Act. Such reasoning I have great difficulty following. The majority evidently concedes, as it must, 5 Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880. 4 Clearly distinguishable are those cases in which an employer, acting independently, may refuse to rehire an employee discharged for cause unrelated to union membership. See Section 10(c) of ,the Act. e However, see Standard Brands, Incorporated, 97 NLRB 737 , 740-741. 6 See also National Brassiere Products Corp ., 122 NLRB 965. 7 In view of our disposition herein, we find it unnecessary to pass on other issues raised by the parties. 8 The unit was stipulated by the parties. ARGONNE NATIONAL LABORATORY 377 that the other requirements of the union-security agreement conform with the provisos to Section 8(a) (3). In plain and unequivocal terms, and in the language of the Act, the relevant portions of the union-security agreement provide that no discharge is permissible if membership is denied or terminated for reasons other than the "failure ... to tender the periodic dues and initiation fee uniformly required." It seems to me that all that the clause relied upon by the majority does is to encourage the maintenance of the very mem- bership contemplated by Section 8(a) (3) by the payment of periodic dues and initiation fees. I am unable to find in this clause any additional obligation not sanctioned by the Act which is imposed on the guards as a condition of retaining their jobs. Indeed, as I read this clause, it is obviously designed to impress upon the guards the necessity of complying with the terms of a valid union-security agreement. This, in my opinion, is not the equivalent of imposing an unlawful condition of employment. Moreover, the clause in question seems to reflect established law that where an individual is discharged for cause, as, for example, un- protected concerted activity, an employer does not violate the Act if he refuses to rehire him later. I see nothing in the Act which renders this principle inapplicable to discharge pursuant to a valid union-security agreement which, in this case, has a reasonable term and prohibits reemployment only in the particular job covered by the agreement. If an employer may properly refuse to rehire a law- fully discharged individual, there appears to be no reason why he may not agree to such a provision in a contract with the employees' bargaining representative. This is precisely what was done in the present case. Finally, the Board has held that an employee subject to a valid union-security agreement is protected in his job only if he tenders his periodic dues and initiation fee before his discharge. Once he is lawfully discharged for his delinquency, a tender is insufficient to restore him to his job. Yet it seems to me that, by finding the clause in question violative of the Act, the majority is, in effect, inconsist- ently holding that the lawfully discharged employee is entitled to regain his job despite his prior default. In view of the foregoing, I am not persuaded that the contract urged as a bar herein contains a provision which on its face exceeds the permissible limits of union security. I therefore would find that the contract precludes a present determination of representatives. 'Aluminum Worker. International Union, Local No. 135, AFL (The Metal Ware Corporation), 112 NLRB 619; Technicolor Motion Picture Corporation, 115 NLRB 1607.