Industrial Rayon Corp.

INDUSTRIAL RAYON CORPORATION 427 other Internationals passed through AFTE which cleared the money down to Richard Nash for Local 151. Concluding Findings It is significant that, although represented by able counsel throughout the hearing, no witnesses were called for IUMSWA and AFTE. Upon consideration of the fore- going and the entire record as a whole, I find that, whether on the theory of joint venture, authorization, or ratification, Respondents IUMSWA and AFTE are equally responsible for the violations of Section 8(b) (1) (A) of the Act committed by their affiliated Locals and their agents. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company 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 burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondents have violated Section 8(b) (1) (A) of the Act, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The cease-and-desist order herein recommended will be limited to the Bethlehem Steel Company and its Quincy yard, as the record does not disclose the likelihood of the commission of similar or other unfair labor practices by Respondents elsewhere.14 On the contrary, al- though Local 151 also conducted picketing at the Company's Hingham yard, about 5 miles from Quincy, there is no showing, claims, nor contention that any mis- conduct occurred at that location. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its Locals Nos. 5 and 90, American Federation of Technical Engineers, AFL-CIO and its Local No. 151, are each labor organizations within the meaning of Section 2(5) of the Act. 2. The foregoing labor organizations have jointly and severally violated Section 8(b) (1) (A) of the Act by committing through agents for whose conduct they are responsible the acts of restraint and coercion hereinabove related which interfered with the exercise of rights of employees guaranteed by Section 7 of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 14 See, e.g., N.L.R.B. v. Local 476, United Assoc. of Journeymen & Appren. of Plumb- ing & Pipefdtting Ind., etc. (L. Turgeon Constr. Co., Inc.), 280 F. 2d 441 (C.A. 1) ; N.L.R.B. v. Local 111, United Brotherhood of Carpenters, etc. (Clemenzi Construction Co.), 278 F. 2d 823 (C.A. 1) ; Rickel Bros., Inc., 128 NLRB 448. Industrial Rayon Corporation and Gregory J. Cudzilo, Sr. International Union of Operating Engineers, Local 600, AFL- CIO and Gregory J. Cudzilo, Sr. Cases Nos. 8-CA-2027 and 8-CB-4920. February 17, 1961 DECISION AND ORDER On April 21,1960, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 130 NLRB No. 53. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondents filed exceptions to the Intermediate Report and supporting briefs. 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 [Chairman Leedom and Members Rodgers and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions thereto and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions hereinafter set forth. We find, in agreement with the ultimate conclusion of the Trial Examiner, that Respondent Employer violated Section 8(a) (3) and (1) and Respondent Union violated Section 8(b) (2) and (1) (A) of the Act by entering into and giving effect to their union-security agreement and by invoking same to discharge Gregory J. Cudzilo, Sr. In making this finding we rely upon the following considerations. The execution and effective date of the current collective-bargaining agreement between the parties is September 4,1959. The contract con- tains the following union-security clause : ARTICLE I RECOGNITION (a) As used throughout this Agreement, the term "employee" shall mean all hourly paid powerhouse and water treatment-filter plant employees of the Company in the Company's Painesville Township, Ohio plant who have been employed for a period of not less than thirty (30) days and excluding all other employees, professional employees, guards and supervisors as defined in the Act. (e) All employees, as defined in Paragraph (a) above must, as a condition of continued employment, become and remain mem- bers of the Union for the duration of this Agreement within thirty (30) days from the date of this Agreement or within (30) days from the date of their employment, whichever is later. Respondent Union was not in compliance with Section 9 (f), (g), and (h) of the Act at the time of execution of the above contract. Accord- ingly, Members Rodgers and Kimball would affirm the findings and conclusions of the Trial Examiner that the union-security clause is unlawful because on the date of execution of the agreement in question INDUSTRIAL RAYON CORPORATION - 429 the Union was not in compliance with Section 9(f), (g), and (h) as required by Section 8 (a) (3). Member Rodgers also joins the Chair- man in his position of basing the violation found by the Trial Ex- aminer on the ground that the union-security clause violates Section 8(a) (3) of the Act because it requires employees who had been em- ployed for 30 days or more at the time the agreement was executed to join the Union "within thirty (30) days"; thus it failed to allow these employees a full 30-day grace period before they were required to become members of the Union and is therefore unlawful.' Accord- ingly, these contract provisions, which were attacked by the General Counsel and advanced in this proceeding as a defense to the unfair labor practices charged in the complaint, cannot serve to justify Respondents' actions in executing and maintaining the union-security provisions and in causing the discharge of, and in discharging, Cudzilo thereunder.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that : A. Industrial Rayon Corporation, Painesville, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in International Union of Operating Engineers, Local 600, AFL-CIO, or in any other labor organization of its employees, by discharging or otherwise discriminating against employees in regard to hire, tenure of employment, or any term or condition of employment, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Giving effect to or maintaining the contract executed on Sep- tember 4, 1959, or any renewal or extension thereof, insofar as it conditions employment on membership in International Union of Operating Engineers, Local 600, AFL-CIO. i Chun King Sales, Inc., 126 NLRB 851; State Packing Company, 128 NLRB 432. The Chairman finds it unnecessary to determine whether the above violations can also be predicated, in agreement with the Trial Examiner , on the fact of the Union 's lapse of compliance at the time of the execution of the contract , although the compliance provi- sions were thereafter repealed prior to the discharge and the filing of a charge in this case, and rests his position solely upon lack of statutory grace period. Member Kimball disagrees with so much of the decision as would base the finding of invalidity of the union-security provisions on the holding in Chun King Sales, Inc., supra. Rather, he believes that the contractual requirement that employees join the Union "within thirty (30) days" is in complete consonance with the proviso to Section 8(a) (3) which permits a requirement of union membership "on or after the thirtieth day" follow- ing the date therein specified. 2 Chairman Leedom and Member Rodgers , accordingly, disagree with the Trial Examiner's finding that the contract provisions , apart from the question of the Union 's failure to comply with 9(f), (g), and (h), are valid. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Entering into or giving effect to any contract conditioning employment upon membership in International Union of Operating Engineers, Local 600, AFL-CIO, except as authorized under Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be validly affected by an agreement entered into in accordance with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959, requiring membership in a labor organization as a condition of employment, as authorized by said section. 2. Take the following action which the Board finds will effectuate the policies of the Act, as amended : (a) Offer to Gregory J. Cudzilo, Sr., immediate and full reinstate- ment to his former or substantially equivalent position, without prej- udice to his seniority and other rights and privileges, as set forth in "The Remedy" section of the Intermediate Report. (b) Jointly and severally with International Union of Operating Engineers, Local 600, AFL-CIO, make Gregory J. Cudzilo, Sr., whole for any losses in pay sustained by reason of the discrimination against him, in the manner set forth in "The Remedy" section of the Inter- mediate Report. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. (d) Post at its plant at Painesville, Ohio, copies of the notices attached hereto marked "Appendix A" and "Appendix B." S Copies of said notices, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by Respondents, be posted by Respondent Company immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees in the powerhouse and filter plant are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that these notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INDUSTRIAL RAYON CORPORATION 431 B. International Union of Operating Engineers, Local 600, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Industrial Rayon Corporation to discharge or in any other manner discriminate against employees in regard to hire or tenure of employment, or any term or condition thereof, execpt as authorized by Section 8(a) (3) of the Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. (b) Giving effect to or maintaining the contract executed on Sep- tember 4, 1959, or any renewal or extension thereof, insofar as it con- ditions employment on membership in the Respondent Union. (c) Entering into or giving effect to any contract conditioning employment upon membership in Respondent Union, except as au- thorized under Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (d) In any like or related manner, restraining or coercing em- ployees of Respondent Company in the exercise of the rights under Section 7 of the Act, except to the extent that such rights may be validly affected by an agreement entered into in accordance with Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959, requiring membership in a labor organization as a condition of employment as authorized by said section. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act as amended : (a) Notify the Respondent Company and Gregory J. Cudzilo, Sr., in writing, that it has no objection to the Company's reinstatement of Gregory J. Cudzilo, Sr., to his former position with the Company. (b) Jointly and severally with Respondent Company make whole Gregory J. Cudzilo, Sr., for any loss of pay sustained by reason of the discrimination against him in the manner set forth in "The Remedy" section of the Intermediate Report. (c) Post in its office and meeting hall, copies of the notices attached hereto marked "Appendix A" and "Appendix B." Copies of said notices, to be furnished by the Regional Director for the Eighth Re- gion, shall, after being duly signed by Respondents, be posted by Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that such notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Eighth Region, signed copies of Appendix B for posting at the place of business of Respond- ent Company as provided above. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ^(e) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against any of our employees in regard to hire, tenure of employment, or any term or condition of employment, except as authorized by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT give effect to or maintain the contract executed on September 4, 1959, or to any renewal or extension thereof, insofar as it conditions employment on membership in International Union of Operating Engineers, Local 600, AFL-CIO. WE WILL NOT enter into or give effect to any contract condition- ing employment upon membership in International Union of Operating Engineers, Local 600, AFL-CIO, except as authorized under Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce any employee in the exercise of his rights as guaranteed in Section 7 of the Act, except to the extent that such rights may be validly affected by an agreement requiring mem- bership in a labor organization as a condition of employment, entered into in accordance with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Gregory J. Cudzilo, Sr., immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges. WE WILL, jointly and severally with International Union of Operating Engineers, Local 600, AFL-CIO, make Gregory J. ,Cudzilo, Sr., whole for any loss in pay he may have suffered by reason of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to the extent this right may be affected by an agreement in conformity INDUSTRIAL RAYON CORPORATION 433 with Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. INDUSTRIAL RAYON CORPORATION, Employer. Dated---------------- 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. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 600, AFL-CIO, AND TO ALL POWERHOUSE AND WATER TREATMENT-FILTER PLANT EMPLOYEES OF INDUSTRIAL RAYON CORPORATION AT ITS PAINESVILLE, OHIO, PLANT Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT cause or attempt to cause Industrial Rayon Cor- poration to discharge or otherwise discriminate against any em- ployee in regard to hire or tenure of employment, or any term or condition of employment except as authorized under Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT enforce, demand, or request compliance by Indus- trial Rayon Corporation with the collective-bargaining agree- ment dated September 4, 1959, between us and that corporation insofar as said contract conditions employment upon membership in our Union. I'VE WILL NOT enter into or give effect to any contract with Industrial Rayon Corporation conditioning employment upon membership in our Union, except as authorized under Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce any employee in the exercise of his rights under Section 7 of the said Act, except to the extent that such rights may be validly affected by an agreement requiring membership in a labor organi- zation as a condition of employment, entered into in accordance with Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. IVE WILL notify Industrial Rayon Corporation and Gregory J. Cudzilo, Sr., in writing that we have no objection to its reinstating 697254-61-vol. 13 0-2 9 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Cudzilo or offering him reinstatement to the position which he held at the time of the discrimination against him. WE WILL jointly and severally with Industrial Rayon Corpora- tion make Gregory J. -Cudzilo, Sr., whole for any loss of pay he may have sustained by reason of the discrimination against him. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 600, AFL-CIO, Labor Organization. Dated---------------- 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Alba B. Martin, the duly designated Trial Examiner , in Cleveland, Ohio, on February 16, 1960, on complaint of the General Counsel , and answers of Industrial Rayon Corporation, the Respondent Company, and International Union of Operating Engineers , Local 600, AFL-CIO, the Respondent Union . The issue litigated was whether the discharge of Gregory J. Cudzilo, Sr., at the request of Respondent Union for nonpayment of dues under a union-shop contract was a violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended , herein called the Act, by the Union and of Section 8(a)(3) and ( 1) by Respondent Company. Most of the facts were stipulated. The General Counsel, the Company, and the Union presented oral arguments on the record, and the Company and the Union filed briefs which have been carefully considered. Cudzilo filed what was labeled "a brief" with the General Counsel in Washington , the Regional Office in Cleveland , and each Re- spondent, but not with me or the Chief Trial Examiner . The General Counsel's office in Washington having informed me by telephone of its receipt of this brief, I directed that the original be sent to me, and I have given it due consideration as a brief intended for me. After the hearing, by stipulation the parties filed the original of Cudzilo's "notification" letter, dated July 25, 1958. The stipulation is accepted . It is in the original exhibit file as Trial Examiner 's Exhibit No. 6, and the original letter as Trial Examiner's Exhibit No. 7. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANY Industrial Rayon Corporation, a Delaware corporation with its principal office in Cleveland, Ohio, operates plants manufacturing rayon yarn and cord in Cleveland and Painesville, Ohio, and Covington, Virginia. Only the Painesville plant is in- volved herein. In the course and conduct of its business operations at its Paines- ville, Ohio, plant, Respondent annually causes and has continuously caused its finished products in the value of more than $ 100,000 to be sold, delivered, and transported in interstate commerce from its Painesville plant to and through other States than Ohio. The answers admitted and I find that Respondent Company is engaged in commerce within the meaning of the Act and that assertion of juris- diction is warranted. H. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 600, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act . Local 600 is referred to herein as the Union, the Local, Local 600, Respondent Union and Respondent Local. INDUSTRIAL RAYON CORPORATION 435 III. THE UNFAIR LABOR PRACTICES A. The contracts Since 1954 Respondent Company has had contracts covering a powerhouse filter plant unit at the Painesville plant with "International Union of Operating Engineers and Local 600 thereof." For about 31/2 years prior to his discharge on October 23, 1959, Cudzilo worked in this unit. The Union's majority was not questioned and was assumed at the hearing.' The last two contracts, those effective March 13, 1956, and September 4, 1959, have had identical union-security clauses, providing that all employees in the unit, must, as condition of continued employment, become and remain members of the Union for the duration of this Agreement within thirty (30) days from the date of this Agreement or within thirty (30) days from the date of their em- ployment, whichever is later. These clauses met the requirements of the first proviso to Section 8(a)(3) of the Act, except for the Local's noncompliance discussed below. The 1956 contract was for 1 year but continued in effect until at least July 25, 1958, by virtue of its automatic renewal clause. By July 25, 1958, negotiations for a new contract had been going on for about a year, but this was the first bargaining conference with Cudzilo as president of Local 600, to which position he had been elected shortly before. This July 25 meeting lasted only a few minutes and came to an abrupt end when Cudzilo removed from his pocket an unsigned, undated, type- written letter addressed to the Company's plant manager from Cudzilo as president of the local. Cudzilo dated it "July 25, 1958," signed it, and tried to hand it to management representatives, who refused to accept it and left it on the table. This notice read as follows: Under Article XV of our present Agreement a 10 day written notice is re- quired for termination for negotiations, therefore, and in accordance with Article XV, this letter is to serve you and the Industrial Rayon Corporation as written notification that, ten (10) days from the date of this letter, we will terminate negotiations. Article XV of the agreement, which included the termination clause and the auto- matic renewal clause, provided also in pertinent part that: The provisions of this agreement shall continue in full force and effect until either party shall give ten (10) days' written notice of termination of negoti- ations, in which event both parties shall be released from all obligations under this agreement. At the hearing Cudzilo contended that this "notification" letter which he handed, or tried to hand, to management at the July 25 meeting, and when they refused it left it on the table, effected a termination of the contract by virtue of the language quoted above from article XV of the contract. On the enire record I find to the contrary. As has been seen above the union party to the agreement consisted of both the International Union and Local 600. The "notification" letter was signed by Cudzilo as president and purported to be the document of only Local 600. Sub- sequent events disclosed that the International Union did not join with the Local Union in this "notification." The Company's industrial manager wrote an Inter- national representative "giving him my opinion of this kind of an exhibition," and prior to the expiration of the 10-day period set in the "notification" a Federal con- ciliator set up a meeting for several weeks later, which meeting was attended by a representative of the International Union, by a group representing Local 600, and by the Company-which meeting ended with an understanding that the parties would continue negotiations in an effort to try to reach an agreement. Negotiations continued thereafter, with interruptions, for about a year, culminating in the reach- ing of the new agreement on September 4, 1959, effective that day. During this year's interim the parties lived under the provisions of the old agreement: The wages, hours, and working conditions established under the old contract were main- tained, and grievances were processed under its grievance clause. In addition to the 'In Case No 8-RC-2015, of which I take official notice, following a Board Decision and Direction of Election (107 NLRB 1518) and an election, Local Union 589, A, B, C, of the International Union of Operating Engineers was certified as the representative of the powerhouse filter plant unit. The record is silent as to how and when Local 600 entered the picture. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, on its face Cudzilo's "notification" expressed an intention by the Local to terminate negotiations 10 days hence. It amounted to a notice of intention to per- form an action 10 days later, which action was never taken. It failed to express its probable intent, namely, that "this was notice that we hereby terminate negotiations effective 10 days from the date of this letter." In addition, on January 23, 1959, the International Union's supervisor wrote the Company, in pertinent part, that "We con- sider (the old contract) to be a valid document in full force and effect." For all the reasons stated in this paragraph, and upon the entire record considered as a whole, I hold and find that Cudzilo's notice did not terminate negotiations or the contract and that the contract of March 13, 1956, continued in existence between the parties until the execution of the new contract on September 4, 1959.2 B. Cudzilo ceases to pay dues, is expelled, discharged Under authority of the constitution of the International Union, on January 19, 1959, the general president of the International Union took over the direction and supervision of Local 600, which he maintained until at least the execution of the new contract on September 4, 1959, and the Local's request to discharge Cudzilo dated October 21, 1959. In late January or early February 1959, through a deputy, the general president of the International Union conducted a hearing in two sessions to determine whether to continue the supervision of Local 600-the decision evidently being that supervision should continue, since it lasted until at least October 21, 1959.3 On February 12, 1959, Cudzilo canceled his dues checkoff authorization. From then until his discharge October 23, 1959, Cudzilo neither paid nor tendered any dues to Local 600, to whom they were payable. On or about June 23, 1959, Cudzilo was notified by the Local's financial secretary that he was 2i/2 months' delinquent in the payment of his dues. On July 1, 1959, the International Union's supervisor for Local 600 wrote Cudzilo advising him of his dues arrearage stating that "if arrangements are not made by you to take care of this indebtendess not later than July 7, it may be necessary to take such actions as provided for under the terms of the Constitution of the International Union . and the collective bargaining agreement currently in effect. On or about September 14 and 17, 1959, Cudzilo advised his employer, the Respondent Company, that he would not sign the new checkoff cards that were made available to the employees pursuant to the collective-bargaining contract between the Company and the Union signed on Sep- tember 4, 1959. At no time thereafter during the period of his employment did Cudzilo sign a checkoff authorization. On or about October 20, 1959, Respondent Local, in accordance with the pro- visions of the International Union's constitution, which governed it, expelled Cudzilo from membership for failure to pay dues which accrued both under the old contract, dated July 16, 1956, and under the new contract, dated September 4, 1959. On October 21, 1959, the supervisor of Local 600 wrote Respondent Company that Cudzilo had been expelled from membership, that Cudzilo had been given due notice of his indebetedness, had been afforded ample opportunity to take care of this matter, and had failed to do so, and stating that under their agreement Cudzilo "is no longer eligible to continue in the employ of your company." As Respondent Company knew that employees' dues were checked off and that Cudzilo's had not been since his cancellation of his checkoff authorization in Febru- ary, Respondent Company had reason to believe that the "indebtedness" referred to in the supervisor's letter related to Cudzilo's nonpayment of dues, which in fact it did. On October 23, 1959, Respondent Company, pursuant to the Union's request of October 21, 1959, discharged Cudzilo from its employ. Since that time it has refused to reinstate him to his former position or substantially equivalent employ- ment. C. Local 600's noncompliance with Section 9(f), (g), and (h) of the Act On September 4, 1959, the execution date and the effective date of the new con- tract, Local 600 was not in compliance with the filing requirements of Section 9(f), (g), and (h) of the Act, and as of that date Local 600 had not received a notice of 2 Although this finding is contrary to a statement in footnote 1 of the Board's Decision and Order in Case No 8-RD-190, to the effect that the old contract had expired prior to the filing of the petition (February 10, 1959), the issue was fully litigated before me and it was not in the RD case. 2Th1s finding is based upon the uncontradicted' testimony of witness James A Rogers at the hearing on April 10, 1959, in Case No. 8-RD-190, of which I take official notice. INDUSTRIAL RAYON CORPORATION 437 compliance from any agent of the Board since August 13, 1958, at which time the Board's Regional Director had notified Local 600 that its compliance with Section 9(f) and (g) would expire on May 10, 1959, and that its compliance with Section 9(h) would expire on July 15, 1959. On April 28, 1959, Local 600 filed with the Regional Director a certificate of intent to comply with Section 9(f) and (g) of the Act within 90 days after May 10, 1959. On the same day, April 28, the Regional Director notified Local 600 that its expiration date for compliance with Section 9(f) and (g) of the Act had been extended to August 8, 1959, upon condition that the necessary forms were filed prior to that date. After the Regional Director received from Local 600 its 9(f) and (g) compliance material on September 28 and October 12, 1959, the Regional Director, on October 12, 1959, notified Local 600 that it was again in compliance with Section 9(f), (g), and (h) of the Act. D. Contentions and conclusions On the day that the new agreement was executed and became effective, September 4, 1959, for a union-security clause to be assertable as a valid defense to a discharge the first proviso to Section 8(a)(3) of the Act required that the Union "has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with Section 9(f), (g), and (h)" of the Act. As has been seen above, on that date, September 4, Local 600 was not in compliance and had not received from the Board within the preceding 12 months a notice of com- pliance with Section 9(f), (g) and (h). In National Lead Company, 118 NLRB 1240, 1241, the Board said: The statutory language is clear and unambiguous. It provides simply for com- pliance "at the time the agreement was made" and not for compliance at the time of discharge pursuant to a union-security clause or for compliance during every day the contract is in existence. Moreover, there is nothing in the legis- lative history of the 1951 amendment which would indicate that Congress did not intend the words of the amendment to have their ordinary meaning. .. . The facts in the case at bar are just the reverse of those in the National Lead case. In the latter case the union was in compliance at the time the contract was signed but not in compliance on the day of the discharge. The Board held that as the union was in compliance "at the time the agreement was made, and the union- security clause otherwise met the requirements of the proviso of Section 8(a) (3), the clause and the discharge thereunder were both lawful." In the case at bar the Union was out of compliance at the time the contract was "made" but in compliance on the day of the discharge. On September 4, 1959, when the new union-security contract was executed, the Union had been out of compliance since May 10, 1959, and had not received from the Board a notice of compliance since April 13, 1958, which was more than 12 months preceding the execution of the agreement. As under the Act prior to the repeal the controlling time for compliance was the time the agreement was executed and the 12 months theretofore, and as the union compliance here did not meet the requirements of the Act at either of those times-in that neither at the time the contract was executed nor during the preceding 12 months had the Local re- ceived from the Board a notice of compliance with Section 9(f), (g), and (h)-both the contract and the discharge under it were unlawful under the Act, prior to repeal. Cf. Kalof Pulp & Paper Corp., 120 NLRB 714, 715; Philadelphia Woodwork Com- pany, 121 NLRB 1642, 1644; Anchorage Businessmen's Association, Drugstore Unit, and its Member Employers, etc., 124 NLRB 662. In substance Respondent Company contends that the new contract was not "made" within the contemplation of the language in the first proviso of Section 8(a)(3) which was later repealed, until the action of Cudzilo's discharge was taken under it. This is not so because the contract recites that it was executed "as of September 4, 1959," and that "this Agreement shall become effective as of September 4, 1959. Further, the agreement contains no clause deferring operation of the pro- vision until the Local should come into compliance.4 Further, "pursuant to" the contract of September 4 "new checkoff cards ... were made available to the em- ployees" on or about September 14, which was action taken under the contract be- fore Local 600 again came into compliance on October 12, 1959. Respondent Company contends that the Local's noncompliance was a mere tech- nical violation having no substantantive implications. By the date of execution of the new contract, September 4, 1959, the Local had been out of compliance for 4 * Cf Northwest Magn.esite Company, 101 NLRB 85, Union de Soldadores, Mecanicos, etc. (Sucesores de Abarca, Inc.), 122 NLRB 1603, footnote 3. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months-since May 10-even though on April 28 the Local had filed on a Board form, through a purported recording correspondence secretary , a certificate of in- tent to get into compliance within 90 days thereafter. Insofar as the record shows, after the declaration of intent of April 28 the next action to get in compliance oc- curred on September 28, when the Local filed on a Board form a "Distribution of Financial Data Certificate." The record does not reveal why the Local did not fulfill its intent to comply within 90 days after April 28, what its compliance inten- tions were on September 4, why it took from August 8 or September 4 to September 28 to file its first compliance document. Under all the circumstances I do not find that the long period of noncompliance was a mere technical violation . Nor was it lacking in substance to the employees who were apparently , though not lawfully, required under the language of the September 4 union -shop clause to remain or be- come members of the Union. Respondent Company contends that after the International Union took supervision over the Local in January 1959, the Local was merged with the International Union, so that thereafter it was not necessary for the Local to get into compliance, since the International Union was in compliance (or at least was not claimed to be out of compliance). Shortly after the supervisorship was placed upon Local 600 the supervisor ap- pointed by the International Union's general president to administer the affairs of the Local wrote Respondent Company, in pertinent part, as follows: You are hereby advised that, by order of the General President, International Union of Operating Engineers, AFL-CIO, which is dated January 19, 1959, I have been appointed to serve as the Supervisor of the Local Union No. 600, International Union of Operating Engineers, AFL-CIO, and to administer the affairs of that Local Union. Under the authority granted to me by the terms of the Directive, I have de- clared that all offices of the Local Union to be vacant. Further, I have ap- pointed the following members of Local Union No. 600 to serve as a committee and to assist me in the conduct of the affairs of the Local Union: R. Johnson and William Tankovich, Co-Chairmen; Committeemen , Billy Shreves, Donald K. Day, Dail Wilson, John Honkala and Earl Atkin. In my absence you will contact either of the Co-Chairmen on any problem which may arise. From the above I conclude that under the supervisorship the Local was continued in existence and that a committee of the Local assisted the supervisor in administering its affairs. To be noted is that under the supervisorship the business of the Local was handled in the name of the Local and not in the name of the International. Thus the certificate of intent of April 28, the later compliance papers, the letters, and official "Notice of Arrears" to Cudzilo concerning his dues arrearage, were all issued in the name of the Local. The letter requesting Cudzilo's discharge was issued by the "supervisor of Local Union No. 600 IUOE, AFL-CIO." The records shows that the new contract was negotiated party by committeemen of the Local. The union party to the new contract consisted of both the International Union and Local 600, and this contract was signed by both the International's supervisor and some mem- bers of the Local named by the supervisor in his January letter to the Company as members of a committee to assist the supervisor. Under all the circumstances, and upon the entire record, I conclude that under the supervisorship the Local was not merged with the International Union but was kept as a separate entity and that the Local continued under the obligation of complying with Section 9(f), (g), and (h) of the Act until those sections were repealed. The filing requirements of Section 9(f), (g), and (h) of the Act were eliminated by the repeal of those sections and the compliance requirement in the proviso to Section 8(a) (3), effective upon the enactment of Public Law 86-257 on September 14, 1959, when the President signed it . After September 14, for a union-security clause to be a valid defense to a discharge , it was no longer necessary that when the contract "was made or within the preceding twelve months" the contracting union have received from the Board a "notice of compliance with Section 9(f), (g), and (h)." Beyond eliminating the necessity of compliance from the 8 ( a)(3) proviso Congress left Section 8(a)(3) intact . It did not make lawful any previously un- lawful agreement. Two congressional pronouncements concerning repeal of Section 9 (f) (g), and (h) were Congressman Griffin's statement that: Section 201(d ) will become effective upon enactment of the bill. However, the repeal of these Sections [9(f), (g), and (h)] does not have a retroactive effect and is not intended to excuse any previous failure to comply therewith; INDUSTRIAL RAYON CORPORATION 439 and Senator Goldwater's statement that: These repealers were immediately effective on enactment of the conference report, but they are not retroactive in effect. Also apposite is the general principle of statutory construction that: The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remain- ing in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . . (1 U.S.C.A., Section 109). Here the repealing Act did not expressly or impliedly extinguish any penalty, for- feiture, or liability existing prior to the repeal; and the legislative history indicated a congressional intent that the repeal has no retroactive effect and that no previous fail- ure to comply with Section 9(f), (g), and (h) be excused by the Board. Both before and after the above-mentioned repeal, the Act prohibits discrimina- tion to encourage or discourage membership in a union, but as an exception permits such discrimination under a valid union-shop clause. Here Cudzilo was discriminated against by discharge caused by Local 600 through operation of the union-shop clause in the September 4 agreement. This union-shop clause was invalid from the begin- ning because of the Local's noncompliance and its invalidity was not erased or the clause validated by the repeal. The parties could have reexecuted the union-shop contract after repeal of Section 9(f), (g), and (h) and then after 30 days lawfully discharged Cudzilo for failure to pay his dues. But this the parties did not do. Rather, they discharged him under the fatally defective contract and they now urge this invalid contract as a defense to the discharge. Such defense cannot be upheld. As the contract asserted as a defense to the discharge was an unlawful contract, it is unnecessary to consider whether there was a violation if the contract had been a lawful contract. Upon the entire record considered as a whole, I hold that by entering into the Sep- tember 4, 1959, union-shop contract when the Local was not in compliance with Sec- tion 9(f), (g), and (h) of the Act, and by discharging Cudzilo under the contract on October 23, 1959, at the request of the Local, Respondent Company violated Section 8(a) (1) and (3) of the Act, and Respondent Local 600 violated Section 8(b) (1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of Respondent Company 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 burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in the unfair labor practices set forth above, I recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. The respective Respondents having discriminated against and caused the dis- crimination against Gregory J. Cudzilo, Sr., at all times since October 23, 1959, I recommend that Respondent Local notify both Respondent Company and Cudzilo that it has no objection to Cudzilo's immediate reinstatement to his former or a substantially equivalent position as an employee of Respondent Company, without prejudice to his seniority or other rights or privileges; and that Respondent Com- pany offer to Cudzilo immediate and full reinstatement to his former or a substan- tially equivalent position,5 without prejudice to his seniority and other rights and privileges. It is further recommended that Respondents jointly and severally make Cudzilo whole for any loss he may have suffered as a result of the discrimination against him by paying to him an amount equal to that which he would have earned as wages from the date of his discharge, October 23, 1959, to the date when, pursuant to the recommendations herein contained, Respondent Company shall offer Cudzilo 5 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, I recommend further that Respondent Company make available to the Board on request payroll and other records, in order to facilitate the checking of the amount of backpay due. As the contract was defective because of noncompliance with Section 9(f), (g), and (h) which have been repealed, because Respondent Company did not know that Local 600 was out of compliance when it entered into the September 4, 1959, con- tract, and because the Respondents' conduct in the past does not suggest the danger that other unfair labor practices will be committed in the future, I shall recommend a narrow cease-and-desist order rather than a broad form order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Industrial Rayon Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 600, AFL-CIO, is a labor organization within the meaning of the Act. 3. By entering into and giving effect to a union-shop contract at a time when Respondent Local was not in compliance with Section 9(f), (g), and (h) of the Act, Respondent Company and Respondent Local 600 have, at all times since September 4, 1959, engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act. 4. By attempting to cause and causing the discharge of, and by discharging Gregory J, Cudzilo, Sr., under an unlawful union-security contract, Respondent Company and Respondent Local 600 have, at all times since October 23, 1959, en- gaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) and Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dayton T. Brown, Inc. and Frank Tumminello. Case No. 2-CA- 6487. February 17, 1961 DECISION AND ORDER On April 25,1960, Trial Examiner John H. Eadie 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that the com- plaint be dismissed with respect to them. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs to the findings in the Intermediate Report and to the recommended order. 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, Fanning, and Kimball]. 130 NLRB No. 52.