New York State Electric & Gas Corp.

NEW YORK STATE ELECTRIC & GAS CORPORATION 357 New York State Electric & Gas Corporation and Calvin G. Crosby Local 249, International Brotherhood of Electrical Workers, AFL-CIO and Calvin G. Crosby New York State Electric & Gas Corporation and Allen J. Sanderson Local 249, International Brotherhood of Electrical Workers, AFL-CIO and Allen J. Sanderson. Cases Nos. 3-CA-1544-1, 3-CB-500-1, 3-CA-1544-92, and 3-CB-500-2. January 19, 1962 DECISION AND ORDER Upon unfair labor practice charges filed on January 6, 1961, by Calvin G. Crosby, an individual, and on January 9, 1961, by Allen J. Sanderson, also an individual, against Respondents, New York State Electric & Gas Corporation, and Local 249, International Brother- hood of Electrical Workers, AFL-CIO, herein respectively called New York Electric and Local 249, the General Counsel of the Na- tional Labor Relations Board by the Regional Director for the Third Region issued a consolidated complaint and notice of hearing, and an amendment to complaint, alleging that New York Electric and Local 249 had terminated the employment of the above-mentioned indi- viduals in violation of Section 8(a) (3) and (1) and 8(b) (2) and 1(A) of the National Labor Relations Act, as amended by the Labor- Management Reporting and Disclosure Act of 1959. Copies of the complaint and amendment to complaint, charges, and notice of hear- ing were served upon Respondents and the Charging Parties. With respect to the unfair labor practices, the complaint and amendment to complaint alleged that the collective-bargaining agree- ment between New York Electric and Local 249 contained a union- security provision that did not comply with Section 8(a) (3) of the Act because it did not grant the full 30-day statutory grace period before requiring newly hired employees to make application for union membership. It was further alleged that Local 249, by demanding the discharge of the above-mentioned individuals for failure to tender dues, and New York Electric, by complying with that demand, did engage in and were engaging in unfair labor practices affecting com- merce within the meaning of Section 8(b) (2) and (1) (A), and 8(a) (3) and (1) of the Act, respectively. Thereafter, Respondents filed answers denying the material allegations of the complaint and its amendment. Between June 29 and July 21, 1961, all parties entered into a "Stipulation of Facts," waiving a hearing and the taking of testimony before a Trial Examiner, the making of findings of fact and conclu- 135 NLRB No. 42. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions of law by a Trial Examiner, aiid the issuance of an Intermediate Report and Recommended Order. They further agreed to submit the case directly to the Board for findings of fact, conclusions of law, and order based upon a record to consist entirely of the charges, complaint, amended complaint, answers, and the "Stipulation of Facts" and ex- hibits attached thereto. On August 9, 1961, the Board approved the stipulation and trans- ferred the case to itself. Thereafter the General Counsel, New York Electric, and Local 249 filed briefs. - Upon the basis of the stipulation, and upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. JURISDICTION New York State Electric & Gas Corporation is, and at all times ma- terial herein has been, a corporation duly organized under the laws of the State of New York, with principal office and place of business at 108 East Green Street, Ithaca, New. York. During the course and conduct of its business operation for the calendar year 1960, it sold and distributed from its various generating plants and transmis- sion lines electrical power to domestic, industrial, and commercial users of a value in excess of $50 million, of which amount at least 5 percent was sold to enterprises engaged in interstate commerce. The parties admit, and we find, that New York State Electric & Gas Cor- poration is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 249, International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. IH. THE FACTS Local 249 and New York Electric have been parties to a collective- bargaining agreement covering the latter's production employees since about 1946. The agreement herein involved became effective on July 1, 1958, was modified on July 1, 1959, and expired on July 1, 1961. It contained the following union-security clause. (A) The Brotherhood has proved to the satisfaction of the Com- pany that it represents a majority of all Production Workers, as defined in Section (B) below, of the Company. Accordingly, the Company recognizes the Brotherhood as the sole and exclusive collective bargaining representative of the employees in the said bargaining unit and agrees to meet and treat with authorized representatives of the Brotherhood with respect to the rates of NEW YORK STATE ELECTRIC & GAS CORPORATION 359 pay, hours of labor, and other conditions of employment of such employees. The Company recognizes representatives of the International Brotherhood of Electrical Workers and of the System Council as authorized representatives of the Brotherhood. (B) Production Workers are defined as those whose work is chiefly of a physical character, who handle tools, operate ma- chinery or equipment as evidenced by the schedule of jobs marked Exhibit "'A" and attached hereto and made a part hereof. For the purposes of this Agreement, the word "Employees" shall ap- ply to the regular, full-time employees in the bargaining unit covered by this Agreement and shall include persons temporarily employed to replace employees within the bargaining unit, who have been granted a leave of absence. (C) All employees within the bargaining unit who were mem- bers of the Brotherhood as of the effective date of this Agreement or who thereafter become members, shall, as a condition of con- tinued employment, remain members in good standing during the period of this Agreement. All persons newly hired during the period of this Agreement for job classifications covered hereby or thereafter permanently transferred to job classifications within the bargaining unit, shall, as a condition of employment, be required to make a bona fide application for membership in the Brotherhood within thirty days after date of their employment or transfer. All persons not now members of the Brotherhood who were hired after January 1, 1941, for classifications within the bargaining unit or subsequent to their employment trans- ferred to classifications within the bargaining unit, shall be re- quired to make bona fide application for membership in the Brotherhood within 30 days of their transfer to a position within the bargaining unit. In the event that an employee covered hereby fails to comply with the requirements of this section, the Company shall, within thirty (30) days after receipt of written notice from the Brotherhood, discharge such employee. [Em- phasis supplied.] Allen J. Sanderson was an employee of New York Electric from September 1953 to October 22, 1960. During all times material to this decision Sanderson was a production worker as defined in clause (B) of the contract set forth above. On or about November 1953 Sanderson became a member of Local 249, and paid his dues directly to its financial secretary. Since January 31, 1960, Sanderson has failed and, refused to tender or make payment of any dues to Local 249. On or about September 21, 1960, Local 249 requested and de- manded that New York Electric discharge Sanderson for nonpay- ment of dues as provided in clause (C) of the agreement set forth above. On October 22, 1960, New York Electric, after duly notifying 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanderson of Local 249's request and demand, discharged him pur- suant thereto. Calvin G. Crosby was an employee of New York Electric from February 1953 to November 6, 1960. Crosby, like Sanderson, was a production worker. He became a member of Local 249 in August 1953, and thereafter paid his dues directly to its financial secretary. Since March 31, 1960, Crosby has failed and refused to tender or make payment of any dues to Local 249. On or about October 6,1960, Local 249 requested and demanded that New York Electric discharge Crosby for nonpayment of dues. On November 6, 1960, New York Electric discharged him in compliance with that request and demand. IV. DISCUSSION The General Counsel contends that the provision in the union- security clause requiring newly hired employees to make application for membership in Local 249 "within thirty days after date of their employment or transfer" does not afford such employees the full 30- day grace period prescribed by the proviso to Section 8(a) (3) of the Act,' that the entire union-security clause therefore is unlawful, and that consequently the discharge of any employee pursuant thereto is also unlawful. The General Counsel relies for his argument on the Chun King 2 line of decisions. Respondents urge that the Chun King decision is wrong and should be overruled. The security clause in question contains provisions for two different types of employees : those who are members of Local 249 on the effec- tive date of the agreement, and those who are hired during the life of the agreement. The first group are required to maintain their mem- bership in good standing during the contract term; the second group are required to join Local 249 "within thirty days after their employment...." 2 Sanderson and Crosby were employees of Respondent Company and members of Local 249 at the time the collective-bargaining agree- ment became effective on July 1, 1958. They were therefore required to maintain their membership in good standing until the contract 'The relevant portion of the proviso to Section 8(a) (3) states: . . . nothing in this Act, or any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . to require as a condition of employment membership therein on or after the thirtieth day follow- ing the beginning of such employment or the effective date of such agreement , which- ever is the later . . . 2 Chun King Sales, Inc., 126 NLRB 851 (Member Fanning dissenting). In that case a majority of the Board held that a union -security clause requiring all new employees to become members of the union "within thirty ( 30) days from the date of their employ- ment" was unlawful because it did not afford new employees the full 30-day grace period in which to decide whether to join the union . The majority also found that in practice the new employees did not enjoy the benefit of a 30-day grace period. $The General Counsel makes no contention that the next to last sentence of para- graph ( C) of the union-security clause is unlawful . Accordingly , the Board does not pass on the validity of this sentence. NEW YORK STATE ELECTRIC & GAS CORPORATION 361 expired on July 1, 1961. Such a provision for maintenance of mem- bership is lawful' The General Counsel nevertheless contends in effect that the otherwise lawful maintenance-of-membership clause is tainted and has become unlawful because the requirement for acqui- sition of membership in Local 249 by new employees is unlawful. In 1952, the Board decided that a union-security clause requiring employees to apply for membership "within 30 days after commencing work" was lawful.' That clause is substantially identical with the disputed provision in the present case. The Al Massera determination was, in substance, overruled in the Chun King case in which a majority of the Board (Member Fanning dissenting) held that a contract pro- vision requiring new employees to become members of the union "within thirty (30) days from the date of their employment" was unlawful because it failed to provide the full statutory 30-day period before new employees were required to join the union. The Board has reconsidered the Al Massera and Chun King decisions and a ma- jority of the Board now believes that the interpretation of the "within 30 day" phrase in Al Massera was correct, that is, in ordinary under- standing "within 30 days" is equivalent to the statutory "on or after the thirtieth day." 5 We accordingly find that the disputed 30-day clause of Respondents' contract is lawful,' and thus find it unnecessary to pass on the validity of the General Counsel's "taint" theory. We therefore further conclude that the discharge of Sanderson and Crosby for not complying with a valid maintenance-of-membership require- ment in the same contract also was lawful. Accordingly, we shall dismiss the complaint in its entirety. 4 Charles A . Krause Milling Co., 97 NLRB 536. 6 Al Massera, Inc., et al., 101 NLRB 837. 6The first proviso to Section 8 (a) (3) of the Act permits employers and unions to make union-security agreements which "require as a condition of employment membership [in such union ] on or after the thirtieth day following the beginning of such employment or the effective date of such agreement , whichever is the later, . . . " In Industrial Rayon Corporation, 130 NLRB 427, footnote 1, Member Kimball similarly expressed the view that the phrase "within thirty (30) days" is in complete conformance with the statutory expression "on or after the thirtieth day." We do not regard the enforcement of the Board 's Order in Industrial Rayon Corpora- tion, supra, as necessarily inconsistent with the above holding. N.L.R B. v. Industrial Rayon Corporation, 297 F. 2d 62 ( C.A. 6) In Industrial Rayon, a panel of the then Chairman Leedom and Members Rodgers and Kimball unanimously found that a union- security clause requiring employees to join the union "within thirty ( 30) days" was unlawful , but for different reasons. Member Kimball said the clause was unlawful because the union had not been in compliance with Section 9(f), (g), and (h) of the Act at the time the contract was executed Chairman Leedom said it was unlawful because it did not give employees the full statutory 30 days in which to join the union . Member -Rodgers approved both grounds set forth by his colleagues In enforcing the Board's Order, the court in a per curiam opinion simply recited the facts and the different reasons stated by the panel members for the unanimous conclusion that the union -security clause was unlawful without indicating whether it endorsed both of the expressed legal reasons In any event, we would respectfully disagree if the court's per curtain opinion is viewed as an affirmance of the holding that a requirement that an employee join a union "within thirty ( 30) days" is unlawful. 7 To the extent that it is inconsistent with the above, the Chun King decision is hereby overruled 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. New York State Electric & Gas Corporation is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 249, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not establish that Allen J. Sanderson and Cal- vin G. Crosby were discharged in violation of Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act. [The Board dismissed the complaint.] MEMBERS RODGERS and LEEDOat dissenting : We cannot concur in our colleagues' determination to overrule Chwn King Sales, Inc., supra. In that case, the Board held, and in our view correctly so, that a union-security clause requiring employees to join the union "within thirty (30) days from the date of their employment" exceeded the permissive limits of the Act. Section 8 (a) (3) of the Act authorizes at the most a contract provision requiring union member- ship "on or after the thirtieth day following the beginning" of em- ployment. Contrary to our colleagues' holding that "within" 30 days is equivalent to "on or after" 30 days, we believe it patent that the two clauses are not the same, and that the clause requiring membership "within thirty days" does not accord employees the full 30-day grace period guaranteed by the Act. This view has been endorsed by the Court of Appeals for the Sixth Circuit. N.L.R.B. v. Industrial Rayon Corporation, 297 F. 2d 62. Accordingly, we would adhere to Chun King, and find the union- security clause in issue here unlawful. E. W. Jemison and Frank Conwell, Partners, doing business as Jemcon Broadcasting Company and Radio Broadcast Tech- nicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL-CIO. Case No. AO-29. January 19, 1962 ADVISORY OPINION This is a petition filed by Radio Broadcast Technicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL- CIO, herein called the Petitioner, for an Advisory Opinion in con- formity with Section 102.98 of the Board' s Rules and Regulations, Series 8. 135 NLRB No. 48.