International Ladies Garment Workers Union

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its Local 20 continued recognition as their collective-bargaining representative, I shall direct that Respondent withdraw and withhold such recognition unless and until the said labor organization or organizations shall have demonstrated exclusive ma- jority representative status pursuant to a Board-conducted election. I shall further direct that Respondent cease giving effect to any agreements , contracts, or under- standings between itself and NBPW or Local 20 respecting its St. Louis production and maintenance employees , or to any modifications or extensions thereof subject to the same condition . Nothing in this recommended order, however, shall be construed as requiring Respondent to vary the wages, hours, or other terms and conditions of employment which Respondent has heretofore established in that regard . Finally, I shall recommend that Respondent post appropriate notices to dissipate the effect of its unfair labor practices. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated , NBPW, and Local 20 are labor organizations within the meaning of Section 2 (5) of the Act. 3. By granting unlawful assistance and support to NBPW and Local 20, Respond- ent has violated Section 8(a) (2) of the Act. 4. By frustrating the Section 7 rights of its employees to self-organization and col- lective bargaining, Respondent has violated Section 8(a)(1) of the Act. [Recommendations omitted from publication.] International Ladies Garment Workers Union [Home Manu- facturing Company] and B. Pauline Anderson Baldwin. Case No. 13-CB-858. November 3, 1960 DECISION AND ORDER On July 15, 1960, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board' 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,2 conclusions, and recommendations.' [The Board dismissed the complaint.] ' 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 Rodgers , Jenkins, and Fanning]. 2 We have carefully reviewed each of Respondent's exceptions and we find them to be without merit. We deem it unnecessary to discuss them further herein in light of our ultimate disposition of this matter. 3 We have adopted the Trial Examiner's finding that Respondent did not engage in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2 ) of the Act pro forma in the absence of exceptions to such finding by any of the parties. 129 NLRB No. 75. INTERNATIONAL LADIES GARMENT WORKERS UNION 633 INTERMEDIATE REPORT STATEMENT OF THE CASE The complaint alleges that on or about June 5, 1959, B. Pauline Anderson Baldwin was discriminatorily discharged or refused employment by the Home Manufacturing Company at the instigation of the Respondent because of her prior activities in its behalf, and that such discharge or refusal of employment was in violation of Section 8(b)(1)(A) and (2) of the Act. On May 13 and 14, 1960, the duly designated Trial Examiner held a hearing with respect to this charge at Decatur, Illinois. Counsel for the Respondent announced at the hearing that he was entering a special appearance only on the ground that Local 120 of the International Ladies Garment Workers Union rather than the Inter- national itself was the proper party to the proceeding. Nevertheless, counsel for the Respondent fully participated in all aspects of the proceeding and after the con- clusion of the hearing filed a general brief, in which he did not retiterate the conten- tion that the International was not responsible for any unfair labor practice which may have been committed. Based upon the record thus made, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE EMPLOYER Home Manufacturing Company (hereinafter referred to as Home) is an Illinois corporation which has its principal office and place of business in Decatur, Illinois, where it is engaged in the manufacture of women's dresses for sale to department stores all over the United States. The gross volume of its annual sales amount to about $3,000,000 and about $2,700,000 of its sales are made outside the State of Illinois. II. THE UNION International Ladies Garment Workers Union, hereinafter referred to as the ILGWU or simply as the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The present case arose out of an attempt in 1959 i of Robert Brown, the vice presi- dent and manager of Home, to hire, as a time-study worker or analyst, B. Pauline Anderson Baldwin, who was one of two employees of Local 120 or the ILGWU servicing the contract covering the Home shop. Mrs. Baldwin had served as busi- ness agent of the Union since June 1953. The other union employee was Margaret Songer, who had been financial secretary of Local 120 since 1938, and its manager since 1949. The need of Home for a time-study worker grew out of a reorganization of its sewing room which was instituted as a result of a survey by -a firm of engineering consultants early in the year. The reorganization had the effect of reducing most of the piece rates that prevailed in the shop. However, under the terms of the collective- bargaining agreement, to which Home was a party, the piece rates, although set in the first instances by the Employer, were subject to adjustment in negotiations with the Union Since the nature of the operations had been changed, 'the Union took the position that the piece rates had to be revised and Joe Rosenfeld, the Union's time-study expert from New York, made a number of visits to the Home shop to survey the situation. He conferred during his visits both with Mrs. Baldwin and Margaret Songer, whose duties included the handling of complaints by employees concerning the piece rates. As a consequence of this review of the situation, the Union suggested the desirability of making more time studies. Home had thereto- fore not employed a time-study worker full time but it now recognized the need for more time studies and the employment of a time-study worker, all of whose time would be devoted to the job. In the latter part of April, Home advertised the need for a time-study worker by placing a box ad in the local papers, and a copy of this advertisement was posted in its North Street plant in Decatur. Seeing it there, one of the employees called it to the attention of Mrs. Baldwin, who became interested in the possibility of securing the job.2 I Unless otherwise indicated, all the events subsequently related in this report occurred In 1959. "Mrs Baldwin sought to Imply in her testimony that she became interested because she feared that she might be laid off. Thus, she testified that in the middle of 1958, Harry 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent from Mrs. Baldwin's own actions that she realized the delicacy of her position in applying for a job at Home while still a business agent for the Union. She did not approach Brown directly but sent her husband to see him in order to ascertain whether he would be interested in seeing her. Having received a favor- able response, Mrs. Baldwin herself contacted Brown, and when the latter inter- viewed her, he raised the question whether the Union would object to her taking the job with Home. Brown testified that Mrs. Baldwin assured him that there would be no trouble with the Union, and I credit his testimony. But I do not believe that Mrs. Baldwin had received any such assurance from the Union, and I believe that she misinformed Brown in this respect. Mrs. Baldwin's own testimony with respect to a telephone conversation that she had with Rufer on May 8 indicates that she had received no assurance The call was made by Mrs. Baldwin from the union office in Decatur to Rufer's office in Chicago. She testified as follows with respect to the conversation between herself and Rufer: A. Well, on May the 8th, I called Mr. Harry Rufer in Chicago and informed him that I had an offer from the Home Manufacturing Company to go to work for them. He said, "Well, what do you want me to do about [sic]?" Q. Did you tell him what job you had been offered? A. I did; time study worker. He said, "Well, what do you want me to do about it?" and he asked me if I was calling on the office telephone, and I said "Yes " He said, "You mean you're talking on the office time and on the office telephone and the union's going to pay the expenses?" So he said, "Well, you- you just do what you want to." [Emphasis supplied.] Obviously, this testimony is contradictory with respect to Rufer's reaction to what Mrs. Baldwin was telling him. When Rufer remarked twice: "Well, what do you want me to do about ito," he was hardly indicating assent. I do not believe that Rufer also made the contradictory remark "you just do what you want to," attributed to him rather hesitatingly by Mrs. Baldwin. In the testimony which Rufer himself gave on the subject of this telephone con- versation, he gave an altogether different version of it which was as follows: "I intend to take a job with the Home Manufacturing Company. What is your opinion9" I told her that's up to her. I asked her whether she is calling from the office. She said, "Yes." I said, "Now, it's up to you." [Emphasis supplied.] However, Rufer went on to deny explicitly that Mrs. Baldwin had revealed to him in the telephone conversation the nature of the job which she proposed to take with Home. This denial, however, I cannot credit. If Mrs. Baldwin refrained from indi- cating the nature of the job-which is itself improbable-Rufer could hardly have failed to ask her what the job was. Mrs. Baldwin also testified that she mentioned her interest in the time-study job to Margaret Songer, who was going to the ILGWU convention which was to be held early in May, and that the latter promised to talk to the union officials there about the problem of her employmnet with Home. At this convention the delegates adopted a resolution providing that all officers of the union must obligate themselves, in case they resigned their union posts, not to take any position as representative of an association or group of employers for a period of 3 years.3 In her own testimony, Mrs. Baldwin did not reveal what word Margaret Songer brought back to her about taking the time-study job with Home. But she did testify that on May 27 she notified Home that she would take the job as a lime-study worker, and Brown testified that it was tentatively agreed that she was to start work on June 15. She was to receive a starting salary of $75 a week for her services.4 Brown testified that his motive in hiring Mrs. Baldwin was to secure a time-study analyst who had had practical experience, which he regarded as more important than Rufer, the ILGWU representative in the area, had mentioned to her the possibility that the union office force in Decatur might be reduced to one person because the Decatur Garment Company was moving from the town, and that since she had far less seniority than Margaret Songer. she expected that she would be the one to be laid off I find it difficult to believe, however, that the mention of this possibility some 9 months previously was a real factor in causing Mrs Baldwin to apply for the Home time-studv job, for not only did Rufer never mention the possibility again but further statements made by him indicated only that the shop stewards might have to cut down on their expenses s This summary of the purport of the resolution is based on Ruler's testimony The text of the resolution was not offered in evidence 'This was the same salary that Mrs Baldwin received from the Union The Inter- national paid $55, and the local $20, of the salary. INTERNATIONAL LADIES GARMENT WORKERS UNION 635 mere technical training in time studies. He conceded that the taking of a good time-study involved some discretion and judgment, since it was more than a purely mechanical process of clocking an operation. The time-study analyst had to make arithmetical computations and allow for an incentive factor in arriving at a rating. But, he insisted that, although Mrs. Baldwin would not have performed her work under supervision, she would have had no authority to set the actual rates of pay, which would have been done by Home's superintendent, a Mrs. Grosser, who would have reviewed any suggested rate in the light of the firm's general experience. In so testifying, Brown was perhaps speaking in terms of his intentions at that time. But Leora Wichert, who succeeded to Mrs. Baldwin's job as business agent for the Union, testified that John Ghanayem, the time-study analyst who was employed by Brown after his attempt to secure the services of Mrs. Baldwin had failed, set piece rates himself "without any review by any other officers of the Company." The term "officers" would seem to me to be broad enough to include Mrs. Grosser, Home's superintendent, and there is no good reason to believe that Mrs. Baldwin's authority would have been more circumscribed than that of John Ghanayem. It is true that, generally speaking, a time-study worker is neither a supervisory nor a confidential employee, even though such employee may participate to some extent in handling grievances relating to rates of pay .5 Nevertheless, a time-study worker is an important technical employee, and I believe that Brown tended in his testimony to minimize the great value of Mrs. Baldwin to the firm at the particular time that she was hired. Her value to the firm lay not only in the fact that she had previously represented the Union in adjusting grievances arising out of the applica- tion of the piece rates but also in the fact that she would be working for the Employer at a critical time following the reorganization of the shop, and a general adjustment of the shop's piece-rate structure. As she had participated in meetings with the union time-study experts, moreover, her knowledge of union strategy would be particularly valuable to her new employer. On June 4, Local 120 held one of its regular meetings at which a report was made on the proceedings at the recent ILGWU convention, and at which Donald Rufus was installed as president of the local. On this same day, Mrs. Baldwin finally told Margaret Songer that she had decided to take the time-study job with Home. Mrs. Baldwin had told the latter of her interest in the time-study job as early as May 7, but she had not definitely told her that she would take the job until that day. Margaret Songer now proceeded to acquaint Rufer with Mrs. Baldwin's decision. After the meeting of the local, Rufer asked Donald Rufus to come to his hotel, and in the conversation which he had with Rufus there, he asked the latter what the reaction of the membership would be to Mrs. Baldwin's taking the job with Home. Rufus told Rufer that the workers would resent her taking the job. Early in the morning of June 5-it was about 8 a.m.-Margaret Songer, who was apparently very friendly with Mrs. Baldwin, called the latter to tell her that Rufer knew that she was going to take the time-study job with Home and to suggest that she resign in order to avoid being fired. Thus Margaret Songer testified that she said to Mrs. Baldwin: "Well, why don't you hand in your resignation, then, because if you don't youre going to get fired, and I think it would look better for you to hand in your resignation." After this conversation, Mrs. Baldwin imme- diately went to the union office, wrote out a letter of resignation effective June 15,6 put it in an envelope, and addressed it to Rufer Shortly thereafter-it was between 9 and 9:30 a.m.-Rufer came into the union office, and was handed the resignation by Mrs. Baldwin. On reading the letter of resignation, Rufer remarked: "I think you're making a big mistake." Shortly after Margaret Songer had her telephone conversation with Mrs. Baldwin, Rufer had telephoned her and directed her to call an executive board meeting of the local for 11:30 a.m. that morning. This meeting took place as scheduled, and the topic of discussion at the meeting was Mrs. Baldwin's case. The consensus at the meeting, which was evidenced by a vote, was that while Mrs. Baldwin could take a job with Home as an operator, she could not take a job which would involve her in dealings with the union-shop stewards and committees. This conclusion was reached on the basis of the resolution at the recent ILGWU convention, and the 5 See N.L R.B v Brown & Sharpe Manufacturing Company, 169 F. 2d 331 (CA, 1); Chapman Value Manufacturing Company, 119 NLRB 935 ;Westinghouse Electric Corpora- tion, 122 NLRB 391 6 Mrs Baldwin testified that she regarded her resignation as union business agent to be also a resignation from union membership. As a time-study worker, Mrs. Baldwin would not have been in the shop bargaining unit and, therefore, she would not have been re- quired to be a member of the Union 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general feeling of the employees that Mrs. Baldwin was too well versed in union affairs to be permitted to take a job as a time-study worker for Home. Also on June 5, a meeting took place between Rufer and Brown, which was attended also by Rufus, and Orval Christensen, who was then secretary of Home. The testimony relating to this meeting is sharply in conflict. The witnesses are agreed neither with respect to the time of day that the meeting is supposed to have taken place, nor with respect to what was said at the meeting. Brown testified that the meeting started at 2 or 2:30 p.m., and that it lasted about an hour or an hour and a half. Rufer testified, however, that he met with Brown between 9:30 and 10 a.m., which would be before the executive board meeting that day, but he did not give any estimate of the time he spent at the meeting. It is apparent that if the meeting started at 10 a.m . and lasted as much as an hour and a half that Rufer would hardly have been able to get to the executive board meeting on time. However, each side attempted to corroborate its version of the time of the meeting Christensen was positive that the meeting, which he remembered well because it was so unusual, occurred in midafternoon. Etta Hurtte, a member of the union executive board who was present at the executive board meeting that day, was equally positive that, pursuant to an arrangement made at the executive board meeting, she had picked Rufer up at his hotel about 1:30 p.m. and driven him in her car from Decatur to Lincoln, Illinois ( a distance of not more than 35 miles),7 where he had to attend another union meeting, and that they arrived at Lincoln "close to 3:00." It seems difficult to believe that it took approximately an hour and a half to drive the short distance from Decatur to Lincoln. In itself, no great importance would attach to the question of when the meeting between Brown and Rufer took place, and the witnesses could readily have been con- fused about the order of events. In this case, however, it is a matter of some impor- tance whether Rufer saw Brown before rather than after the executive board meeting, for the order of the two events has some bearing on what was actually said at the meeting in Brown's office on June 5. It seems to me, and I so find, that this meeting occurred in midafternoon, probably somewhat earlier than Brown thought, after the union executive board meeting had already taken place. I base this conclusion prin- cipally on the ground that the decision to procure Mrs. Baldwin's dismissal was not definitely made until the union executive board meeting had occurred, and that Rufer, therefore, would not have sought an interview with Brown before then. As for what was said at the meeting between Brown and Rufer on the subject of Mrs. Baldwin,8 I find that Brown truthfully testified that what Rufer told him was that if he carried out his intention to employ Mrs. Baldwin as a time-study worker he would instruct the union employees "to have nothing to do with her and not to work with her." I do not credit Rufer's testimony that he merely informed Brown that, knowing the sentiments of the workers, he "would not be responsible for whatever happened," and that he was afraid that the workers "may refuse to work with her." Both Brown and Rufer agreed that the latter did not threaten to call a strike if Mrs. Baldwin were hired. It is also undisputed that Rufer made it clear to Brown that the Union would interpose no objection if Home chose to employ Mrs. Baldwin as a sewing operator, or in some other capacity that would not involve her in a conflict of interest with the Union. Apart from my impression of Rufer's character and his powers of recollection, there are three principal reasons for my believing Brown's rather than Rufe's testi- mony with respect to what was said at the meeting. Before the close of the meeting Brown asked Rufer to give him a letter outlining the position he had taken. At first Rufer replied: "Certainly." But, then, before he left, he said: "Before I write that letter, I must talk to Harold Schwartz." (The latter was the midwest director of the International.) It is apparent that if Rufer had been merely conveying to Brown the sentiment of the workers, rather than a decision on his part, he would not have hesitated to give Brown the letter which he was requesting. A second reason for disbelieving Rufer's testimony as to what he said to Brown at the meeting is a letter which the latter gave to Mrs. Baldwin that same day. After the meeting Brown attempted to reach Mrs. Baldwin but she was not at home. How- ever, Mrs. Baldwin and her husband came to see Brown at 4 p.m. that day, and although he had not yet received, of course, any further communication from Rufer in the form of a letter or otherwise, he told Mrs. Baldwin that he had decided against employing her as a time-study worker. She then asked him for a letter, explaining his position. In the first two paragraphs of this letter addressed to Mrs. Baldwin Brown stated the following: 4I take judicial notice of the distance between these two towns 8 There were, of course, other subjects of discussion at the meeting such as the weather and business in general. INTERNATIONAL LADIES GARMENT W GRKRRS UNION 637 Today Mr. Harry Rufer of the Chicago office of the International Ladies Gar- ment Workers Union informed me that, due to a policy of the International Ladies Garment Workers Union, if you come to work for us as a time study worker he will instruct his members, our employees whom you would be time studying, to refuse to have anything to do with you. I did ask him if he meant to call a strike, to which he said he had not said that but that they would not work with you." [Emphasis supplied.] As this letter was written a few hours after the conversation between Brown and Rufer, and thus constitutes a contemporaneous record of their conversation, it must be regarded as far more reliable than Rufer's recollection of the conversation almost a year later. Conceivably, Brown, in writing this letter for Mrs. Baldwin, could have been exag- gerating what Rufer had said to him in an effort to protect both himself and to assist Mrs. Baldwin in case she should decide to bring proceedings against the Union. But there is, finally, the testimony of Margaret Songer, who was called as a witness by the Union, that she suggested to Mrs. Baldwin that she resign to forestall being fired. She was in an exceptionally good position to judge of Ruler's intention, and she would hardly have given the advice to Mrs. Baldwin if Rufer had no intention of taking decisive action. In his letter to Mrs. Baldwin, Brown, although he explained what he took to be the position of the Union, did not formulate precisely how the Union's position led to his decision not to employ her. In his testimony at the hearing, however, he explained that the refusal of the employees to have anything to do with Mrs. Baldwin if she were employed as a time-study worker would make the performance of her duties impossible, since the employees who were timed would have to cooperate to make correct timing possible. IV. THE LAW OF THE CASE Under the provisions of Section 8(b) (1) (A) of the Act, it is an unfair labor prac- tice for a labor organization or its agents to restrain or coerce employees in the exer- cise of the rights guaranteed in Section 7 of the Act, and under the provisions of Section 8(b) (2) of the Act it is an unfair labor practice for a labor organization or its agents to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3) of the Act. In other words, a labor organization does not violate Section 8(b)(2) of the Act unless the employer's conduct also vio- lates Section 8(a) (3) of the Act, which proscribes discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or dis- courage membership in any labor organization.9 As any violation of Section 8(a)(3) of the Act is also necessarily a violation of Section 8(a)( I) of the Act, which forbids an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, so any violation of Section 8(b)(2) of the Act is also necessarily a violation of Section 8(b) (1) (A) of the Act.io It is not entirely clear whether the ILGWU is still contending that Local 120, which was not joined as a party, rather than the International, is responsible for whatever unfair labor practice may have been committed. But, it seems clear that if this con- tention is still being made, it must be rejected. Rufer testified that he was an agent of the International with jurisdiction over the locals in the Chicago area. This shifted the burden to the International to show that Rufer was acting beyond the scope of his authority but no attempt was made to meet this burden. It is true that Rufer's refusal to give Brown a letter confirming his position with respect to Mrs. Baldwin is some indication that he may have doubted his own authority. But it is equally con- sistent with an assumption that Ruler wished to consult his regional director because he doubted the wisdom of his conduct rather than because he wished to secure ade- quate authority. It would seem, too, that Brown did not act too precipitously in telling Mrs. Baldwin that he would not be able to employ her because of the attitude of the Union. He had already been told by Rufer that he would instruct the employees B See Local 1 48, Truck Drivers and Warehousemen's Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers or America, AFL-CIO (Harry Griffin, d/b/a Harry Griffin Trucking), 114 NLRB 1494, and Local 1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Loa Angeles County District Council of Carpenters , United Brotherhood of Carpenters and Joiners of America, AFL-CIO ( Pardee Construction Company), 115 NLRB 126 10 See International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 291 (Wisconsin Axle Division, The Timken-Detroit Axle Company), 92 NLRB 968, and earlier cases there cited. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not to cooperate with Mrs. Baldwin. The letter which he was asking Rufer for was simply to confirm the Union's position. There was nothing to indicate that the Union's position was provisional, and the record is devoid of any suggestion that the Union ever retreated from its position. There would seem to be no doubt, therefore, that the Union "caused" the refusal of Home to employ Mrs. Baldwin, and also that this was accomplished by the threat made by Rufer.ll It would also seem to be immaterial that Mrs. Baldwin may have been an applicant for employment rather than an employee.12 There would seem to be other reasons, however, for concluding that the Union's conduct did not constitute a violation of the provisions of the Act. It is well settled that although a union may discipline its members, it may take no action which will affect their employment rights. As the Supreme Court of the United States said in The Radio Officers' Union of the Commercial Telegraphers Union, AFL V. N.L.R.B., 347 U.S. 17, the leading case on the subject of the scope of Section 8(b)(1)(A) and (2) of the Act: "The policy of the Act is to insulate employees' jobs from their organizational rights." But the Court also recognized that the purpose of the union in causing the discrimination must be to encourage members to perform obligations or supposed obligations of union membership. Now, it is true that Mrs. Baldwin appears to have been a member of the ILGWU. But it seems to me quite plain that her membership in the Union was an adventitious circumstance. The Union did not procure her dismissal because she had failed in some obligation of membership but because it considered that she had betrayed her trust as business agent of the Union, which is to say as an employee of the Union. In other words, the Union did not act to enforce an obligation of membership but an obligation of her employment. After all, a union can act not only in its capacity as a union but also in its capacity as an employer.13 It is only when it acts as a union, however, that its actions are subject to scrutiny under the Act. If one of the Union's officers had induced Home not to employ a girl as a secretary because when she had worked for him he had discovered that she could not spell and was a very slow typist, it could hardly be maintained that the Union had violated Section 8(b)(2) of the Act, just because the applicant also happened to be a member of the Union. It does not seem to me that the case of Mrs. Baldwin is different just because she had been employed as a business agent rather than as secretary. By preventing Mrs. Baldwin from obtaining other employment, the Union may or may not have sub- jected itself to an action for damages, but the question whether the Union com- mitted an actionable wrong is not involved in the present proceeding. The question that is involved is whether the Union committed an act which is an unfair labor practice. I believe that this question should be answered in the negative. It must be kept in mind also that, while the Court in the Radio Officers' case held that when an employer discriminates at the behest of a labor organization, his intent to do so for the purpose of encouraging or discouraging union membership need not be specifically shown but may be inferred from the inherent nature of his act, this does not mean that where the act has no such inherent tendency the pre- sumption will still be indulged and the necessity for independent evidence will be obviated.14 The motive of the Union in this case was simply to protect its bargain- ing position, and the motive of the Employer was simply to gain an advantage in bargaining with the Union. I am aware that the refusal to employ Mrs. Baldwin may have enhanced the position of the Union but the position of a labor organization may be enhanced by many means and in many circumstances that have no direct rela- tionship to its activities as a union. Moreover, at the time when Brown refused to employ Mrs. Baldwin, she was no longer even a member of the ILGWU, and as a time-study worker she would not have been in the bargaining unit represented by the Union. Thus, regardless of the Union's motive, Brown's refusal to employ her would not have had in the circumstances of the present case an inherent tendency to encourage membership in the Union. 11 See Chief Freight Lines Company, 111 NLRB 22; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, A F. of L, Plumbers and Steam fitters Local Union No. 284, and O. L. Lipsey, Its Agent (Carrier Corporation), 112 NLRB 1385; United Packinghouse Workers of America, Local 267, C 1.0 (Pfaelzer Bros, Inc.), 114 NLRB 1279 12 See Phelps Dodge Corp v. N L.R.B., 313 U S 177 (1941) ; John Hancock Mutual Life Insurance Company, 191 F. 2d 483 (C A D.C.) 38 This is indeed recognized in Section 2(2) of the Act, which, although it excludes any labor organization from the definition of "employer," recognizes that a labor organization may act as an employer. 14 See the very recent case of Central States Petroleum Union, Local 115 (Standard Oil Company), 127 NLRB 223. INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 78 639 It seems to me, finally, that it would be unwise in the present case to infer an intention to discriminate for the purpose of encouraging membership. It is true that the Act embodies the policy of preventing discrimination by reason of union member- ship and activity. The Act also embodies, however, the policy of encouraging collective bargaining between employers and employees through representatives of their own choosing, and makes it an unfair labor practice for both employers and labor organizations to refuse to bargain collectively.15 Neither of these policies can be regarded, however, as absolutes, and when these policies are in competition with each other, some reconciliation must be effected. This can be accomplished, it seems to me, by permitting a union to protect its bargaining position when it is threatened, even though such action may run counter to some literal prescription of the Act. It may be that Mrs. Baldwin would not have participated directly perhaps in the process of collective bargaining but it seems to me evident that even an indirect role on her part would seriously have affected the Union in the critical circumstances of the present case. This would seem to be in line with the philosophy which underlies the recent decision in N.L.R.B. v. International Ladies Garment Workers' Union (Slate Belt Apparel Contractors Assn.), 274 F. 2d 376 (C.A. 3). In this case the court held that the ILGWU could enforce its policy of refraining from bargaining with employers' representatives who had previously held union office 16 by refusing to deal with one of its former employees who, through many years of employment, had acquired familiarity with the union's "strategy, thinking, working, and operations," and that the employers' insistence upon dealing with the union only through its former employee "displayed an absence of fair dealing." I am also aware that the Board in the same case had found a violation of Section 8(b) (3) of the Act,17 but this finding was based on the assumption that the union's insistence upon the confidential nature of the employment of its former employee, and the highly unfavorable consequence which it attributed to his new employment, was a mere pretext and sham. In view of the critical circumstances in which the union found itself in the present case, however, I believe that it would be unrealistic to come to a similar conclusion here. Upon the above findings of fact, and upon the entire record in the case, I reach the following: CONCLUSIONS OF LAW 1. Home Manufacturing Company, the Employer in the present case, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies Garment Workers Union, the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in unfair labor practices affecting commerce in violation of Section 8(b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] 15 As provided in Section 8(a) (5) and 8(b) (3) of the Act 16Tlie description of the ILGWU policy in this case suggests that Rufer's summary of the purport of the resolution adopted at the union convention was not entirely accurate 17 See International Ladies' Garment Workers' Union, AFL-CIO, N.E. Department (Slate Belt Apparel Contractors' Association, Inc.), 122 NLRB 1390 International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO [Knowlton Construction Company] and Leon Parsley International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO and Robert J. Haley. Cases Nos. 8-CB-096 and 8-CB-9299. November 3, 1960 SUPPLEMENTAL DECISION AND AMENDED ORDER On December 14, 1959, the Board issued its Decision and Order in the above-entitled proceeding, in which it found that,: (1) the Re- 129 NLRB No. 72.