Local 34, Int'l Molders & Allied Workers Union

LOCAL 34, INT'L MOLDERS & ALLIED WORKERS UNION 913 In its motion, the IAM requests the Board to clarify its 1952 cer- tification by determining "which bargaining unit shall perform the work of machining discs in the Machine Shop," and by directing the Employer "to assign the work in dispute to the Machinists." This work had originally been performed by a machinist working in the machine shop, but was-then assigned by the Employer to a member of the UE when-the old mill was shut down and a new one set up in the production area. When the Employer later sold the new machine and transferred the job back to the machine shop, it con- tinued to employ a member of the UE to perform the operation. It is this assignment of work which the IAM is seeking to change in its present motion. As stated, the expressed purpose of the IAM's motion is to have the Board assign work presently being done by a member of the UE unit to a member of the IAM unit. In The Gas Service Company case,2 the Board said : ... work assignment disputes are not-properly matters for con- sideration and resolution in a representation proceeding. As the Board has said, its sole function in representation proceed- ings is to ascertain and certify the name of the bargaining rep- resentative, if any, that has been designated by the employees in the appropriate unit. It is not the Board's responsibility in representation proceedings to decide whether employees in the bargaining unit are entitled to do any particular work or whether an employer has properly reassigned work from em- ployees in the bargaining unit to other employees. As the motion does not raise a question concerning representation, we shall dismiss it. [The Board denied the motion to clarify bargaining units.] 2140 NLRB 445, 447. Local #34, International Molders and Allied Workers Union, AFL-CIO [Malleable Iron Range Company ] and Daniel Gar- czynski. Case No. 30-CB-7 (formerly 13-CB-1576). January 10, 1965 DECISION AND ORDER On July 20, 1964, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not' engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the Charging Party filed 150 NLRB No. 84. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. 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 Deci- sion and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Examiner Eugene E. Dixon at Beaver Dam , Wisconsin, on March 18, 1964, pursuant to due notice. The complaint, issued by the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board), on January 31, 1964, and based upon charges filed by Daniel Garczynski, an individ- ual, on December 9, 1963, alleged that Local # 34, International Molders and Allied Workers Union, AFL-CIO, the Respondent herein, had engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2 ) of the Act by attempting to cause and causing the Employer herein (Malleable Iron Range Company) to dis- charge Garczynski for failure to pay union dues and/or initiation fees or for reasons other than his failure to pay dues and/or initiation fees. In its duly filed answer, Respondent denied the commission of any unfair labor practices. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS Malleable Iron Range Company (the Employer herein ) is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Wisconsin . At all times material it has maintained its principal office and place of business in the city of Beaver Dam, Wisconsin, where it has been engaged in the manufacture of gas and electric cooking ranges. During the calendar year preceding the issuance of the complaint , the Employer in the course and conduct of its business operations sold and shipped goods valued in excess of $50,000 from its place of business in Wisconsin directly to States of the United States other than the State of Wisconsin . The Employer is, and at all times material has been, engaged in commerce and its operations affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Respondent Local # 34, International Molders and Allied Workers Union, AFL- CIO, at all times material has been a labor organization within the meaning of Sec- tion 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES The following facts were stipulated by the parties: From 1937 to 1959 Federal Labor Union 19057 represented an overall production and maintenance unit at the Employer's plant. In 1948 this union received authorization for a union -shop contract under the Act. In 1959 as a result of a representation election Respondent Molders Union Local # 34 "became the bargaining representative of the foundry employees of the Company on a separate unit basis and the I.M.A.W. became the representative of the employees." LOCAL 34, INT'L MOLDERS &'ALLIED WORKERS UNION 915 The current contract between Respondent and the Company contains a union-shop provision.' Daniel Garczynski had been a member of Respondent Local #34 but had allowed his membership to lapse prior to June 1, 1963. On June 11, 1963, the Wisconsin Employment Relations Board conducted an all-union referendum under Section 111.06 (1) (c) (1),2 of the Wisconsin statutes and certification pursuant to that election was issued to Respondent on June 17, 1963. On June 19, 1963, Respondent asked Garczynski to join the Union and he refused. The credited testimony of Charles Goodwin, the Employer's foundry superintend- ent, further shows that, on the same day, officers of the Respondent went to the foundry office of the Company and informed Goodwin that "their union had been sanctioned by the State Board and that Danny Garczynski was no longer allowed for work there." Goodwin then called A. C. Seering, the Company's general super- intendent, about the matter. Seering told Goodwin to get a written statement from the union president. Pursuant to this instruction the following statement was ob- tained by Goodwin and delivered to Seering's office: Effective this date, 6-19-63, Dan Garczynski is not a member in good standing with Local 34, I.M.A.W. 2:30 p.m. Robert E. Hein Pres. Thereafter, according to Seering's credited testimony, he met Union President Hein and Garczynski in his office either together or separately. In any event, Heiri had indi- cated that having received the Wisconsin board certification "now was the time for [Garczynski] to put up-that this is it, as far as they were concerned he was no longer a member of the Union; therefore, he couldn't work." To Garczynski Seering said on this occasion that he "had gotten this report ... this is about as far as I can go with you. You have defied everyone. You have had plenty of opportunity and plenty of warnings to join the Union and you haven't joined it. I am all through with you. You are finished." Despite some evidence that Garczynski was not an entirely exemplary employee, Seering testified that he was dis- charged on the 19th solely "because he didn't pay his dues." As to this matter the undenied and credited testimony of Respondent's President Hein shows that when Hein asked Garczynski if he was ready to join the Union "he said no." Hein said, "the certification is back, Dan. Can you give me some date when you will be able to join the Union? He said, no. [Hein] said a week, 10 days, 2 weeks, a month? he said, no. He got very indignant for the fact that [they] even asked him He gave [them] no answer, just a flat no." The record reveals the following additional credited testimony by Hein which took place on June 20, the day after Garczynski had been discharged: Our afternoon starts at 12 o'clock. Ten after twelve one of the employees came down and asked me if Danny was-Danny belonged to the union., I said no. He said the guy is back up here working. So I immediately got the only company representative there at the time which was William Geise, time keeper and I went up to the core room with him and Geise asked Garczynski what he was doing there. And Danny says I'm back to work. I said-I asked him are you ready to join the union? He says yes. 1 Article I, section 4 of the agreement provides as follows: All foundry production and maintenance employees of the Company shall, as a con- dition of employment, be and remain members in good standing of the union during the life of this contract Any new production or maintenance employee shall, after a probationary period of 60 days become and remain a member in good standing of the union during the life of this contract. The union will notify the Company in writing of any employee not in good standing under the provisions of this agreement before any action is taken by the Company. Apparently the union-shop clause had been in effect continuously since 1948. z Section 111.00 (1) (c) (1) of the Wisconsin statutes provides: It shall be an unfair labor practice for an employer . . . to encourage . . . mem- bership in any labor organization . . by discrimination in regard to hiring, tenure or other terms or conditions of employment ; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employee[s ] in a collective bargaining unit, where at least two thirds of such employees voting . . . shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board . .. . 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So, I told him to go down to the financial secretary and tender his initiation fee. On the way down the time-keeper asked me, he says how come they hired him back? I says I don't know. I have got nothing to do with that. I said I wonder if he has been rehired. Danny tendered the money to the financial secretary. I told him to give it right back to him I said until I contacted Ole Seering, the company general superintendent. We went up to the office. I rang him at home. 'I ask him if he rehired Garczynski. I said he is ready to join the union. We have taken him back in. I said have you rehired him? He says no, I am all done with him. Run him out there. I says you want to talk to Bill Geise, the time keeper? Bill went on the phone. I don't know what conversation transpired between him and the general superin- tendent, but when he hung up he went up in the core room and told Garczynski to go home. Contentions and Conclusions On the evidence herein there is no question, and I find, that Respondent caused the discharge of Garczynski by the Company because he refused to join the Union. The question is whether this action was permissible under the Act. As the General Counsel points out the only defense that Respondent may lawfully plead is a union-shop agree- ment permitted under the first proviso of Section 8(a) (3) which states: Provided, That nothing in this Act, or in any 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 following the beginning of such employment or the effective date of such agreement, which ever is the later .... The General Counsel apparently contends that in view of Section 14(b) 3 and the Wisconsin statute permitting a union shop only under certain conditions, the union shop provided for in Respondent's collective-bargaining agreement is no defense and that the Wisconsin action vis-a-vis the union shop takes precedence over and super- sedes the contract action in this respect. Nevertheless, the General Counsel apparently would not divest the Board of all jurisdiction in the matter, since he contends that the illegality here stems from the untimely discharge in that it was made before the 30th day from the effective date of the Wisconsin board's union-shop certification.4 The Respondent contends that regardless what rights Wisconsin may have under the Act, herein, they do not displace the Board's concurrent rights and thus "that the union-shop contract involved in this case is valid under national law, and the discharge of Garczynski for failure to pay union dues was lawful under that Act." I agree. The matter appears to have been disposed of by a line of Board decisions beginning with Giant Food Shopping Center, Inc., 77 NLRB 791. In that case the bargaining unit included stores in the District of Columbia where union-security contracts were neither prohibited nor regulated, and in Virginia where they were completely prohibited. The issue here was "to determine whether by reason of Section 14(b) a unit is inappropriate for purposes of a union-shop election under Section 9(e) (1) 5 where such unit includes employees whose work is performed in a State which forbids union-shop agreements of the type sanctioned by Section 8 (a) (3 )." In a 3-to-2 decision the Board held that it was prohibited from conducting union- authorization elections in States prohibiting union-shop contracts. In reaching its decision the majority resorted to the legislative history of the enactment of Section 3 Section 14(b) provides that: Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of em- ployment in any State or Territory in which such execution or application is pro- hibited by State or Territorial law. * In this connection it should be noted that the record does not specifically show that Garczynski had been an employee for a full 30 days prior to the date of the Wisconsin board's certification . However, since he had been a member of the Union but had let his membership lapse, and since no contention is made to the contrary, the inference is fully justified, and I find, that he had been employed for more than 30 days prior to the certification and his discharge. 5At this time Section 8(a) (3) required a majority vote of employees in the unit under Section 9(e) (1) as a prerequisite for authorization of a union shop. This requirement was eliminated by Congress in 1951 in the adoption of the so- called Taft-Humphrey amendment to the Act Act of October 22, 1951, 65 Stat. 601. LOCAL 34, INT'L MOLDERS & ALLIED WORKERS UNION 917 14(b) for enlightenment on,the congressional intent. In this connection it quoted from the House Conference Report s on the bill which became law as follows (at pages 793-795): Under the House bill (H.R. 3020 ) there was included a new section 13 of the National Labor Relations Act to assure that nothing in the Act was to be con- strued as authorizing any closed shop, union shop, maintenance of membership, or other form of compulsory union agreement in any State where the execution of such agreement would be contrary to State law. . . . The conference agreement, in Section 14(b), contains a provision having the same effect. The Decision further stated that: The purpose of Section 13 of the House bill, adverted to above, was stated in the House Report accompanying H.K. 3020 as establishing the policy that "the United States expressly declares the subject of compulsory unionism one that States may regulate concurrently with the United States, notwithstanding that the State law limits compulsory unionism more drastically than does the Federal law." [Foot- note omitted.] Thus, the legislative history preceding the enactment of Section 14(b) fully supports the otherwise clear language of this provision as establishing the intent of Congress to leave to the exclusive jurisdiction of the States the pro- hibition of union-shop agreements to the extent that prohibition in this respect now exists or may hereafter exist in such States. [Footnote omitted.] ... if the employer and the union, acting pursuant to the authority conferred by a Board-conducted union-shop election, should enter into a union-shop agreement notwithstanding the prohibitions of the State law, the Board might well be placed in the position of having to accept the union-shop agreement as a defense to an unfair labor practice complaint alleging discriminatory discharges in violation of the Act. In the latter instance, the employer and the union [footnote omitted] would be seeking immunization from the Board by virtue of a contract executed in violation of State law, the enactment of which is specifically protected under Section 14(b). Such an anomalous position on the part of the Board is not con- ceivable; nor logically, as a matter of legislative consistency, is such a result tenable . . We conclude, therefore, that Section 14(b) prohibits the utiliza-, tion of Section 9(e) (1) and the consequent application of the proviso of Sec- tion 8(a)(3) by employers and unions who seek to evade the obligations imposed by State law prohibiting the execution or application of union-shop agreements. " The Board was next confronted with a case involving a unit with employees in States where all three situations prevail-i.e., union shop prohibited by State, union shop regulated by statute, and no law on the subject at all. Northland Greyhound Lines, Inc., 80 NLRB 288. Here of course the Board had no problem- where the States had not legislated on the question of union shops. It also affirmed its holding in Giant Food Shopping Center, supra, as to States prohibiting union-security contracts. With respect to States such as Wisconsin regulating union shops by requiring a vote of the employees to be affected but not prohibiting such contracts, the Board stated in Northland Greyhound Lines, Inc., supra, at 291-292: In this connection, it should be noted that Section 14(b) negates authority to execute certain types of union-security agreements in States where they are prohibited, but does not make any reference to States in which such agreements are permitted subject to restrictions. The question then arises whether Con- gress also intended by this Section that, where State law places more drastic restrictions upon union-shop agreements than national law, the former shall be paramount. It is a well-established rule of statutory construction that in the determination of legislative intent the words in a statute should be given their ordinary mean- ing. [Footnote omitted.] According to their dictionary definitions, [footnote omitted] the word "prohibited" means forbidden or interdicted, whereas the word "regulated" means controlled by rule or subjected to restrictions. It would there- fore be unduly straining the import of clear and unambiguous language to say that Section 14(b) applies to States which permit union-shop agreements under certain conditions, as well as to prohibitory States. In the absence of explicit words to the contrary, weconstrue this Section to mean that State prohibition of union-shop agreements shall be given effect, but not that State regulation of such 6 H. Rept 510, 80th Cong, 1st sess, p. 00. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreements shall be given precedence over national regulation .... We conclude, therefore, that where employees have their headquarters in a State having regulatory legislation, the national law prevails. This holding was reaffirmed by the Board in Safeway Stores, Inc., 81 NLRB 387, involving a Colorado statute which did not prohibit but merely regulated union-shop agreements, the Board again expressly stating that Section 14(b) was intended to mean "that State prohibition of union-shop agreements shall be given effect but not that State regulation of such agreements shall be given precedence over national regulation." On March 7 , 1949, the Supreme Court decided Algoma Plywood and Veneer Com- pany v. Wisconsin Employment Relations Board, 336 U.S. 301 . In that case the Wisconsin employer in 1943 had reluctantly and under pressure of the War Labor Board entered into a maintenance -of-membership clause in a collective -bargaining agreement which clause was carried over from year to year thereafter and was effective in 1947. In that year an employee refused to pay union dues and was discharged for that reason . He filed a complaint with the Wisconsin board. No union- shop referendum having been conducted under the Wisconsin law, the Wisconsin board ordered the Company to cease and desist from giving effect to the maintenance- of-membership clause in the contract and ordered the employee reinstated and made whole. The Wisconsin Supreme Court affirmed the order and the case was appealed to the United States Supreme Court which affirmed the Wisconsin court holding that the effect given by it to the Wisconsin law did not conflict with the Federal statute. Before the United States Supreme Court the Company and the Union contested the jurisdiction of the Wisconsin board on the ground of the exclusive authority of the NLRB under Section 10(a) of the Act and claimed that section 111.06 ( 1)(c)(1) of the Wisconsin statutes was repugnant to Section 8(3) of the Federal Act.7 In the latter connection, the Court said, at 314: Because § 8 (3) of the new Act forbids the closed shop and strictly regulates the conditions under which a union-shop agreement may be entered , § 14(b) was included to forstall the inference that federal policy was to be exclusive. It reads: "Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law." It is argued , however, that the effect of this section is to displace State law which "regulates" but does not wholly "prohibit" agreements requiring membership in a labor organization as a condition of employment. But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any "application" of a union-security contract , such as discharging an employee, which under the circumstances "is prohibited" by the State, the legislative history of the section would disspell it. [Citations omitted.] The Court then went to: (at 314-315) Since the enumeration by the Wagner Act and the Taft -Hartley Act of unfair labor practices over which the National Board has exclusive jurisdiction does not prevent the States from enforcing their own policies in matters not governed by the federal law, such freedom of action by a State cannot be lost because the National Board has once held an election under the Wagner Act. The character of activities left to State regulation is not changed by the fact of certification. Certification, it is true, makes clear that the employer and the union are subject to federal law, but that is not disputed . So far as the relationship of State and national power is concerned, certification amounts to no more than an assertion that as to this employer the State shall not impose a policy inconsistent with national policy. [Citations omitted .] Indeed, the express disclaimer in § 8(3) of the National Labor Relations Act of intention to interfere with State law and the permission granted the States by § 14 (b) of the Taft-Hartley Act to carry out policies inconsistent with the Taft-Hartley Act itself, would be practically meaningless if so easily avoided. For these provisions can have application, obviously, only where State and federal power are concurrent; it would have been futile to disclaim the assertion of federal policy over areas which the com- merce power does not reach. 7 The Wisconsin board order preceded the enactment of the Taft -Hartley Act; the decision of the Wisconsin Supreme Court was rendered after the Taft -Hartley Act became effective. The United States Supreme Court found no conflict between the Wisconsin law and the Federal law before or after Taft -Hartley. THE MARLEY COMPANY 919 After the Algoma Plywood decision, the Board again had occasion to consider the application of Section 14(b) in Western Electric Company, Incorporated, 84 NLRB 1019, on the establishment of a unit involving multistate operations. Here again, it adhered to its interpretation in the Northland Greyhound and Safeway cases of Section 14(b) distinguishing between States prohibiting union shops and those merely regulat- ing them. In this connection, the majority (Member Murdock dissenting) stated, supra, footnote 14, at 1022: Contrary to the views of our dissenting colleagues, in our opinion, this result is not inconsistent wtih the recent case of Algoma Plywood Co. v. Wisconsin Employment Relations Board, 69 S. Ct. 586, 1949, where the Supreme Court held that the laws of Wisconsin regulating union-security agreements had not been superseded by the National Labor Relations Act, as amended. There is no necessary conflict, in our opinion, between that holding and-the view which we adopt herein that the States and Federal Government have concurrent jurisdiction to regulate the union shop, each being supreme in its own sphere. It follows from this view that any certification which we may issue on the basis of the election directed below is to be construed as certifying only that federal requirements have been met by the Petitioner for purposes of enforcement of the National Labor Relations Act. The question of compliance by the Petitioner with State Laws regulating the union shop is a question of State law to be deter- mined by State authorities in a State proceeding. The General Counsel has made no showing that the Western Electric case is not diapositive of the issue here. Apparently the General Counsel's position simply is that the Board's decision therein is based on an erroneous interpretation of Section 14(b) and the Algoma decision. If such be the case, it is not for me to say. Insurance Agents' International Union (The Prudential Life Insurance Company of America), 119 NLRB 768; Iowa Beef Packers, Inc. 144 NLRB 615. Accordingly, I shall recom- mend dismissal of the complaint. In any event, since there is no provision in the Wisconsin act for a grace period as is provided in the Federal Act, it is clear that the Wisconsin act was not violated when Garczynski was discharged for refusal to join the Union. Regardless whether it be determined that the State and Federal Boards have concurrent jurisdiction herein or that the State law is to be enforced by the Federal Board,8 I see nothing in the legis- lative history or the decisions on this matter that would support the anomalous position of the General Counsel which would be to "subvert the National Act to the State Act insofar as the election requirements of the State Act were concerned, but subvert the State Act to the National Act insofar as the grace period is concerned." CONCLUSION OF LAW By causing the discharge of Garzynski because of his refusal to join the Union, Respondent did not engage in an unfair labor practice. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusion of law, and upon the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the complaint be, and hereby is, dismissed in its entirety. P A result that would seem to be foreclosed by the Supreme Court's decision in Retail Clerks International Local 1625 v. Alberta Schermerhorn, 375 U.S. 96. The Marley Company and Shopmen's Local Union No. 682 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO. Cases Nos. 9-CA-2990 and 9-CA-3040. January 13, 1965 DECISION AND ORDER On July 28, 1964, Trial Examiner Arthur E. Reyman issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 82.