Aluminum Co. of America

National Labor Relations Board - Board Decisions

Jun 20, 1946

68 N.L.R.B. 750 (N.L.R.B. 1946)

In the Matter of ALUMINUM COMPANY OF AMERICA , LAFAYETTE WORKS
and UNITED STEELWORKERS OF AMERICA , C. I. O.
Case No. 11-C-1200.-Decided June 20, 1946
DECISION
AND
ORDER
On December 14, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action , as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the respondent and the A. F. of L.1 filed exceptions
to the Intermediate Report and supporting briefs. Pursuant to notice to all
parties, oral agreement , requested by the respondent and the A. F. of L.,
was held before the Board at Washington, D. C., on May 14, 1946. The
respondent and the A. F. of L. appeared and participated in the argument.
The Board has reviewed the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
and the A. F. of L.'s exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, except as hereinafter modified.
We agree with the Trial Examiner that, in acceding to the A. F. of L.'s
request for the discharge of Warren Wilson under the circumstances set
forth in the Intermediate Report, the respondent violated Section 8 (3)
of the Act. The Trial Examiner has based his finding upon the following
grounds, in substance : (1) that the contract between the respondent and
the A. F. of L., which provided for maintenance of union membership
as a condition of employment, expired on March 24, 1945, and therefore
Wilson's discharge on April 5, 1945, for his failure to maintain member-
1 The American Federation of Labor and its affiliate , Aluminum Workers Union , No. 23120,
are referred to collectively herein as the A . F. of L.
6R N. L. R B, No. 102.
750
ALUMINUM COMPANY OF AMERICA , LAFAYETTE WORKS 751
ship in the A. F. of L., could not be defended on the basis of the mainte-
nance-of-membership clause of the contract; (2) that even if the contract
were still in effect, the discharge would have been violative of the Ac:
since the respondent knew that the A. F. of L.'s request for Wilson's
discharge was based on his expulsion from the A. F. of L. because of his
activities on behalf of the Steelworkers during the time that a question of
representation was pending. We find it unnecessary to pass upon the
second ground because we agree with the Trial Examiner that the con-
tract between the respondent and the A. F. of L. expired on March 24,
1945. The respondent and the A. F. of L. contend that the terms of the
expired contract were extended by oral agreement until May 20, 1945,
when a new contract was executed. Although the record indicates that'the
respondent continued to give effect to the provisions of the expired con-
tract after March 24, 1945, the evidence does not show that there was
any agreement by the respondent and the A. F. of L. to extend the
terms of the contract beyond this date. Accordingly, we reject the con-
tention of the respondent and the A. F. of L. and find that because the
contract between the respondent and the A. F. of L. had expired before
the discharge of Wilson on April 5, 1945, the maintenance-of-member-
ship clause of this contract cannot serve as a justification for the discharge
of Wilson. In the absence of a contractual provision which satisfied the
requirements of the proviso to Section 8 (3) of the Act, it plainly was a
violation of Section 8 (3) to discharge Wilson for failing to maintain
membership in the A. F. of L.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Aluminum Company of America,
Lafayette Works, Lafayette, Indiana, and its officers, agents, successors,
and assigns shall :
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, or encouraging
membership in Aluminum Workers Union, No. 23120, affiliated with
the American Federation of Labor, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of their employment ;
(b) Engaging in any like or related act or conduct, interfering with,
restraining, or coercing its employees in the exercise of the right to
self-organization , to form labor organizations , to join or assist United
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steelworkers of America, affiliated with the Congress of Industrial
Organizations, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Warren Wilson immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority and other rights and privileges ;
(b) Make whole Warren Wilson for any loss of pay that he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of r-,()-ley equal to the amount which he nor-
mally would have earned as wages during the period from March 30,
1945, to the date of the respondent's offer of reinstatement, less his net
earnings during such period;
(c) Post at its plant in Lafayette, Indiana, copies of the notice attached
hereto marked "Appendix A." Copies of said notices, to be furnished by
the Regional Director for the Eleventh Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent
immediately upon receipt thereof, and maintaind by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Eleventh Region in writing,
within ten (10) days from the date of this Order, what steps the respon-
dent 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 National Labor Re-
lations Act, we hereby notify our employees that :
We will not discourage membership in United Steelworkers of
America, C. I. 0., or encourage membership in Aluminum Workers
Union, No. 23120, A. F. of L., or any other labor organization of
our employees, by discharging or refusing to reinstate any of our
employees, or by' discriminating in any other manner in regard to
their hire or tenure of-employment, except insofar as said conduct
is protected by the proviso to Section 8 (3) of the Act.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS 753
We will not engage in any like or related act or conduct interfering
with, restraining, or coercing our employees in the exercise of their
right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection.
We will offer to Warren Wilson immediate and full reinstate-
ment to his former or substantially equivalent position without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay suffered as a result
of the discrimination.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS,
Employer.
By .................................
(Representative) (Title)
Dated .....................
NOTE.-The above-named employee, if presently serving in the armed
forces of the United States, will be offered full reinstatement upon appli-
cation in accordance with the Selective Service Act after discharge from
the armed fore'
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
Mr. William O. Murdock, for the Board.
Messrs. Stuart, DeVol, Branigan & Ball, by Messrs. Allison E. Stuart and
Michael T. Ricks, of Lafayette, Ind., and Mr William C. Winter, of Pittsburgh,
Pa., for the Respondent
Mr. James Robb, of Indianapolis, Ind., for the Steelworkers
Mr. Lloyd W. Littell, of Lafayette, Ind., for Local 23120.
Mr Hugh J. Gormley, of Indianapolis, Ind., for the American Federation of
Labor.
STATEMENT OF THE CASE
Upon a charge duly filed by United Steelworkers of America, C. I. 0., herein
called the Steelworkers, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana),
issued its complaint, dated October 17, 1945, against Aluminum Company of
America, Lafayette Works, Lafayette, Indiana; herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations-Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and the charge, accompanied by notice of
hearing thereon, were duly served upon the Respondent, the Steelworkers, and
Mr. Hugh Gormley, Regional Director of the American Federation of Labor.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices , the complaint alleged in substance :
(1) That the Respondent, on or about March 30, 1945, discharged Warren Wilson,
and since that date has continuously refused to reinstate him to his former or
substantially equivalent position, for the reason that he joined and assisted the
Steelworkers, and engaged in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection; and (2) that by the aforesaid
acts, the Respondent violated Section 8 (1) and (3) of the Act.
Pursuant to notice, a hearing was held at Lafayette, Indiana, on November 8
and 9, 1945, before the undersigned, W. P. Webb, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the Respondent, and Aluminum
Workers Union, No. 23120, A. F. of L., herein called Local 23120, were repre-
sented by counsel and the Steelworkers and the American Federation of Labor
by their representatives . All parties participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
The Respondent's answer, which was filed on November 5, 1945, admitted the
jurisdictional allegations of the complaint and that the Respondent discharged
Warren Wilson on the date alleged in the complaint and thereafter refused to
reinstate him, but denied that it had engaged in the alleged unfair labor practices.
On November 1, 1945, the American Federation of Labor, by its Regional
Director, Hugh Gormley, filed a petition to intervene in this proceeding. The
petition was granted by the Trial Examiner.
At the beginning of the hearing, the Trial Examiner denied the motion of the
American Federation of Labor to dismiss the complaint, but granted the right to
renew the motion at the conclusion of the hearing. At the conclusion of the
hearing, the motion of the Board to conform the pleadings to the proof with
respect to formal matters was granted by the Trial Examiner, without objection.
Ruling was reserved by the Trial Examiner on the motions of the Respondent
and the American Federation of Labor to dismiss the complaint. Both of these
motions are herewith denied by the undersigned. The parties waived the privilege
of oral argument before the Trial Examiner. Briefs have been received by the
undersigned from the Board and the Respondent.
Upon tJie entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Aluminum Company of America, is a Pennsylvania Corpora-
tion. It is engaged in the manufacture and sale of aluminum extruded shapes and
tubing. The Respondent operates approximately 40 different plants located in 17
different States of the United States. The instant proceeding involves only the
employees of the Respondent at its plant in Lafayette, Indiana, herein referred
to as the Lafayette Works. The principal raw materials used at the Lafayette
Works are pig aluminum , coal, coke, and lumber. The annual consumption of such
materials at the Lafayette Works exceeds one million dollars in value, of which
75 percent or more is obtained from sources outside of Indiana. The finished
products manufactured at the Lafayette Works annually, exceed one million
dollars in value, of which 75 percent or more is distributed to points outside of
Indiana . The Respondent concedes that it is engaged in commerce, within the
meaning of the Act.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS
II. THE ORGANIZATIONS INVOLVED
755
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, and Aluminum Workers Union, No. 23120, affiliated with the
American Federation of Labor, are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
1. Introduction
For the past several years considerable rivalry has existed between the American
Federation of Labor and the International Union, Aluminum Workers of America,
C. I. O.1 in respect to organizing the Respondent's employees at the Lafayette
Works, of which there were approximately 4,000. In October 1942, pursuant to
a petition filed by A F of L,2 a Board election was held in the Lafayette Works.
Neither union received a majority, and the petition was dismissed.3 In April 1943,
a consent election was held in the plant and neither Union received a majority.4
A run-off election followed which was won by A. F. of L by 134 votes.
On July 20, 1943, the Respondent entered into a written agreement with Local
23120, affiliated with the American Federation of Labor, acting jointly and in
cooperation with International Council of Aluminum Workers Union, American
Federation of Labor. The agreement applied only to the Respondent's employees
at its Lafayette Works, Lafayette, Indiana. The Agreement contained the following
maintenance of membership clause:
All employees who, 15 days after the date of the application of the mainte-
nance of membership provisions now in effect in the plants covered by this
agreement, are members of the Union in good standing in accordance with
the constitution and by-laws of the Union and those employees who may
thereafter become members shall, as a condition of employment, remain
members of the Union in good standing during the life of the agreement.
The Union shall promptly furnish to the National War Labor Board a
notarized list of members in good standing 15 days after the date of the
directive order. If any employee named on that list asserts that he withdrew
from membership in the Union prior to that date, the assertion or dispute
shall be adjudicated by an arbiter appointed by the National War Labor Board
whose decision shall be final and binding upon the Union and the employee.
The Union agrees that neither it nor any of its officers or members will
intimidate or coerce employees into membership in the Union. If any dispute
arises (as to whether there has been any violation of this pledge, or whether
any employee affected by this clause has been deprived of good standing in
any way contrary to the constitution and by-laws of the Union) the dispute
shall be regarded as a grievance and submitted to the grievance machinery,
and, if necessary, to the final determination of an arbitrator appointed by the
National War Labor Board in the event that the collective bargaining agree-
ment does not provide for arbitration
i In May 1944 International Union, Aluminum Workers of America, C. I 0, merged with
the Steelworkers.
2 Case No. R-4201 , 44 N L R B 490.
'Total valid ballots cast was 3709 C. I. 0. received 1310, A. F. of L. 746, and "neither"
1653.
4 Total valid ballots cast was 3843, C. I 0. received 1659, A F of L 1377, and "neither"
798. (Case No 13-R-1739).
696966-469
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 13 of this agreement provided that no employee shall be discriminated
against by the Respondent because of his membership in any other labor organiza-
tion It reads as follows :
There shall be no discrimination at the time of employment against any
prospective employee, nor after employment, by any foreman, superintendent,
or any other person in the employ of the Company against any employee be-
cause of membership or non-membership in any labor organization.
The paragraph covering the term of the agreement, reads as follows •
This agreement shall be in effect for the period ending March 24, 1944
and thereafter until modified, after at least thirty-days notice.
On February 11, 1944, the Respondent and Local 23120 entered into a
written agreement which reads as follows :
ADDENDUM TO AGREEMENT
between
Federal Labor Union No. 23120 of the American Federation of Labor and
Aluminum Company of America, Lafayette, Indiana, entered into on July
20, 1945.5
This instrument shall be entitled an "Addendum to Agreement" and shall
be considered to be, and is, a part of the agreement entered into on July 20,
1943, between the Aluminum Company of America, Lafayette, Indiana and
Federal Labor Union No. 23120, of The American Federation of Labor.
It is agreed between the Aluminum Company of America, Lafayette,
Indiana and Federal Union No. 23120 of the American Federation of Labor
that all working conditions contained in the agreement entered into July 20,
1943 is and shall remain in full force and effect until March 24, 1945.6
On November 6, 1944, the Steelworkers informed H. B. Kahle, works manager
of the Lafayette Works, by letter that a majority of the employees had become
members of the Steelworkers, and requested a meeting for the purpose of
negotiating an agreement. The last two paragraphs of this letter read as follows.
... Also, I have been advised that the American Federation of Labor is
going to request that you discharge members of the United Steelworkers of
America for exercising their right under the National Labor Relations Act
to join a Union of their own choosing.
May I point out that this will be a flagrant violation of the National Labor
Relations Act, and I sincerely trust that your Company will not comply with
any such request made to you by the American Federation of Labor as all
the resources of the United Steelworkers of America will be placed at the
disposal of our members to contest such action
Under date of November 11, 1944, the Respondent replied to this letter of the
Steelworkers, stating in substance that Local 23120 had been certified by the
Board, on May 13, 1943, as the exclusive representative of the Respondent's
employees at the Lafayette Works for the purposes of collective bargaining, and
that the Respondent was bound by a contract with this union, which contained
a maintenance of membership provision, therefore it declined to negotiate with
the Steelworkers.
S Evidently this is a typographical error, as it should be 1943.
0 This agreement was also signed by the American Federation of Labor, by Hugh Gormley.
ALUMINUM COMPANY OF AMERICA , LAFAYETTE WORKS 757
On January 25, 1945, Local 23120 wrote the Respondent requesting that negotia-
tions for a new agreement be commenced on or before February 25, 1945. The
full text of this letter reads as follows:
This is to advise that your employees, members of the Aluminum Workers'
Union, Local #23120, in regular meeting held, January 24, 1945, went on
record unanimously requesting that negotiations for a new Agreement with
your Company be started on or before Feb. 25, 1945.
This action was taken pursuant to the provisions of the existing Agree-
ment, and we now request that mutual arrangements be made at an early date,
for representatives of the Aluminum Company of America, at the Lafayette
Plant, Lafayette, Indiana, and representatives of the American Federation of
Labor, and of the said Aluminum Workers Union, Local #23120, to meet
in joint conference for the above stated purpose.
Anticipating your early and favorable response to the above, we remain,
About 4 days after this letter was written, Local 23120 issued hand bills adver-
tising the fact that its contract with the Respondent would expire on March 24,
1945, and that the Respondent had been requested to begin negotiations with
Local 23120 not later than February 25, 1945, for a new contract. The circular
also stated that it was the established custom and practice of Local 23120 to
negotiate with the Respondent each year for a new contract.
On January 27, 1945, the Steelworkers informed the Respondent by letter that
it was, on that day, filing a Petition for Certification of Representatives with the
Board for an election in the Lafayette Works, and requesting that the Respondent
desist from entering into any negotiations with the A. F of L. or any other union
in regard to collective bargaining until the question of representation had been
determined by the Board. On January 27, 1945, the Steelworkers filed the aforesaid
petition with the Board. On that same date, the Regional Director informed the
Respondent by letter that the petition had been filed.?
On January 27, 1945, Local 23120 wrote a further letter to the Respondent with
respect to negotiating the new contract, which reads as follows:
In the telephone conversation we had last Friday evening, Mr. R. G Woods
informed me that in line with the official notice filed with your Company by
our Aluminum Workers' Union, Local #23120, requesting negotiations for a
new Agreement on or before February 25th, 1945, that Mr. Wm. Winters of
the Company would be prepared to begin such negotiations with the Union
at 9 A. M. Tuesday, Jan. 30th, 1945.
You further suggested that the Union furnish you with an outline of the
Changes or modifications, which the Union desires to propose during these
negotiations.
Pursuant and hereto, he advised that we shall meet with your representative
or representatives, as suggested by Mr. R. G. Woods, however, it is well
that we point out at this time, that your employees, members of the Union,
are to meet in regular Contract Meetings beginning January 31st next, for
the express purpose of drafting the proposed changes to the Agreement, and
as quickly as these changes are adopted, the proposals as desired by the
membership will be formerly presented to your Company for our joint
negotiations You will understand that in the forthcoming negotiations, the .
proposed changes to be negotiated will be based upon the expressed desires of
the Union members, and consequently will be governed accordingly.
'Case No. 11-R-762.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of Mr. Winters and your Company being prepared to meet with
the Union at such early date, which we interpret to be a mere preliminary to
the issues that will soon come before us jointly for disposition, we can at this
time give a partial list of several of the essential changes which we can
anticipate on the basis of expressions already made by the membership :
(a) Closed Shop.
(b) Check off of Union Dues.
(c) Increased Shift Premium.
(d) Sick leave with pay.
(e) Paid Holidays (when not worked) and time and one half if worked.
Anticipating the pleasure of meeting with Mr. Winters as suggested by Mr.
R. G. Woods, we remain,
On February 10, 1945, the Steelworkers wrote a letter to the Respondent, which
reads as follows :
This is to advise you that yesterday we submitted to Mr. Thomas G. Watson,
Field Examiner for the National Labor Relations Board, approximately 2300
cards signed by the employees of your Company working at the Lafayette
Plant.
In view of the fact that the American Federation of Labor refused to agree
to an election, I am herewith requesting that you discontinue your collective
bargaining conferences with this organization and not enter into any agree-
ment until this question has been decided by the National Labor Relations
Board.
It is my understanding that the National Labor Relations Board will proceed
on this case as promptly as possible. Therefore, I am hopeful that your
Company will comply with our request in this matter.
The Respondent and Local 23120 held several meetings, at which they discussed
the terms of a new contract, but before any agreement had been reached, negotia-
tions were discontinued, under instructions from the Respondent's Pittsburgh
office, because of the question of representation which had arisen under the Steel-
workers' petition.
On February 19, 1945, a consent election agreement was entered into by the
Respondent, Steelworkers, and Local 23120 which was duly approved by the
Board's Regional Director and Field Examiner. A few days later, Local 23120
issued circulars with reference to "withdrawal of membership." The full text of
this circular reads as follows:
MEMBERSHIP WITHDRAWAL PRIVILEGE
Special arrangements for membership withdrawal for benefit of all A. F L
members at this plant.
To remove the idea among some workers who think it necessary to vote CIO
to get away from the A . F. L. maintenance of membership clause, because they
don't like it , any such member who may so desire , can terminate his member-
ship, and all obligations to the A . F. L. at this plant , by just simply bringing
his membership book to our office , and his or her name shall be stricken from
our A. F. L. membership ledgers. This, any one can do immediately upon
expiration of our present contract which will terminate on March 24, 1945.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS 759
So to all who may wish to withdraw from membership, under the mainte-
nance clause, just turn in your book at our office, any time from March 24th
to March 31st inclusive, and the name will be taken off our membership books,
with no further obligation on your part, and with no ill feeling toward anyone
Remember this, and hold this statement for your own personal record. We
want our entire membership to be voluntary, because that is the basis of our
A. F. L. Union, and you will be free to rejoin at any time in the future when
you may wish to do so, of your own free will and accord.
This is fair play . . . The A. F. L. way.
Be right with A. F. L.... Vote American ... Vote A. F. L.
VOTE A. F. L.
The election was held on March 6, 7, and 8, 1945. Neither union received a
majority.8 A run-off election was held on March 13, 14, and 15, 1945, and Local
23120 won by 50 votes. On March 22, 1945, the Regional Director issued his
"Consent Determination of Representatives" finding that Local 23120 was the
exclusive representative of the employees involved.
On May 20, 1945, the Respondent's Pittsburgh, Pennsylvania, office entered into
a written agreement with "Aluminum Workers' Union Nos. 18780, 19256 and 21320
affiliated with the American Federation of Labor, acting jointly in cooperation
with the International Council of Aluminum Workers' Unions." This contract
covers the Respondent's employees at Lafayette, Indiana, East St. Louis, Illinois,
Baton Rouge, Louisiana, and Massena, New York. It provides, inter alia, for
maintenance of membership and check-off. The term is from date of execution
to August 1, 1946, and "thereafter until modified, after at least thirty days' notice."
2. The discriminatory discharge of Warren Wilson
Prior to his suspension on or about March 29, 1945, and subsequent discharge
on April 5, 1945, Wilson had been continuously employed by the Respondent since
May 1941. It was stipulated by the parties that "Warren Wilson's work for the
company was satisfactory and his employment record is not in question in this
case, nor did it have anything to do with the company's decision to discharge
him." Wilson joined Local 23120 in May 1943. In January 1945 he joined the
Steelworkers. Thereafter, he was very active in the Steelworkers' organizational
campaign. He distributed over 100 application cards for membership in the
Steelworkers and solicited other employees to join the Steelworkers. Prior to the
consent election in the plant on March 6, 7, and 8, 1945, he informed employee
Jack Halsema, steward of Local 23120 in his department, that he was campaigning
for the Steelworkers. Halsema told him that he was making a big mistake in
doing so. Soon after receiving one of the circulars of Local 23120 advising that
members could withdraw their membership in Local 23120, Wilson, under date
of March 10, 1945, informed both the Respondent and Local 23120, by letter, that
he desired to withdraw his membership from Local 23120. He received no reply.
On or about March 17 or 18, 1945, Ray Robinson, financial secretary and business
agent of Local 23120, sent Wilson a registered letter informing him that a charge
Total valid ballots cast was 3133 . Steelworkers received 1461, Local 23120 received 1213
and "neither" 459.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been filed against him and that a trial would be held on March 21, 1945. This
letter reads as follows :
Enclosed find copy of alleged charge of Violation of Article #39 of
Constitution and By-Laws of Aluminum Workers' Union, Local #23120,
A. F. of L.
This charge has been filed at this office, and in accordance with Article #9
of the By-Laws, the President, Geo. Dexter Jr. has appointed three Brothers
as a Trial Committee to hear evidence of this charge.
This committee will be in session on Wednesday Mar. 21, 1945, at 7:30
P. M. at the Union Hall, 10th and Main Sts.
You will be extended every courtesy and privilege to dispute such alleged
Charge on the above mentioned date, time, and place as provided for in
Article #9 of By-Laws, therefore, it is your interest to be present.
The charge reads as follows :
I do hereby prefer charges against Warren Wilson for violation of Article
#3 of Constitution and By-Laws of Aluminum Workers' Union, Local 23120.
I will present my evidence to Trial Board upon notification of hearing, for
their consideration and findings.
(Signed) ALBERT HAINGE.
Wilson did not receive the letter and knew nothing about it until the morning
of March 22, 1945, the day after the trial. On the morning of March 22, Wilson
went to the Union Hall to pay up his dues in Local 23120, in order that his with-
drawal could be accepted. He saw Robinson, and the latter told him about the letter
and the charge and refused to accept his dues. Robinson also told him that the
trial had been held the night before and that he had been expelled from membership
in Local 23120. Wilson protested and stated that he had not received the letter
Wilson also told Robinson that Local 23120 could not expel him as he had already
withdrawn his membership. Robinson then said that another trial would be
arranged for March 26, 1945. Robinson's testimony in respect to the letter reads
as follows:
He [Wilson] informed me it had been impossible for him to be there at
that time due to the fact that he lives in a rural community The rural mail
carrier left a note-in his mail box informing him he had a registered letter. He
didn't get it because he lives back off the road. Consequently, his son found it
and went to the Cutler post office and signed for the letter. He said he didn't
have knowledge of it until the morning after the original hearing . . . I told
him there was a trial as provided by the Constitution, that he was tried to the
best of my knowledge. When he told me about the facts involving the thing,
told me about-told me about his son receiving his mail, I informed him if
there was such a condition, if we found that was true he would be given every
opportunity to appear before that same trial board.
Wilson went home that night and found the letter. Notwithstanding the fact that
Robinson told Wilson that another trial would be held on March 26, Robinson
Article 3 reads in part as follows
SECTION 2 . Candidates for membership shall be accepted on paying initiation fee in full,
and subscribing to the following affirmation.
I pledge my honor to faithfully observe the Constitution of this Union to comply with
all rules and regulations for the government thereof ; not to divulge or make public any of
the private proceedings of this Union ; to faithfully perform all duties assigned to me to
they best of my ability and skill ; to so conduct myself at all times as not to bring reproach
upon my Union , and at all times to bear true and faithful allegiance to the American
Federation of Labor.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS 761
wrote to the Respondent on March 24, requesting that the Respondent discharge
Wilson The letter reads as follows:
MARCH 24, 1945
The Union is hereby notifying you that Warren Wilson Clk #11066, is no
longer a member in good standing with the Aluminum Workers Union #23120
In accordance with the provisions of the agreements between your Company
and this Union, you are hereby requested to terminate the employment of this
man effective at 3:00 P. M. on Thursday, Mar. 29, 1945.
(Signed) RAY ROBINSON,
Fin. Sec. and Bus. Agt.
A receiving stamp appears on this letter, showing that the Respondent received
it on March 24, 1945.
On March 26 the Respondent notified Wilson by letter that Local 23120 had re-
quested his discharge. The letter reads as follows :
Date MARCH 26, 1945
Clock No. 11066
Employee Warren Wilson
The Maintenance of Membership Provision of the National War Labor
Board provides as follows:
"All employees who, 15 days after the date of the Directive Order of the
National War Labor Board in this case are members of the Union in good
standing in accordance with the Constitution and By laws of the Union
and those employees who may thereafter become members shall, as a
condition of employment remain members of the Union in good standing
during the life of the Agreement."
This is to notify you that the Union, which is the Collective Bargaining
Agency in this plant has notified us that you failed to maintain your mem-
bership in the union in good standing and, therefore, in accordance with the
above Provision, the Company is ordered to dismiss you from employment
unless you re-establish such union membership by 3.00 P. M., March 29, 1945
In accordance with the union's Constitution and By-laws or unless you have
filed an appeal of your case in accordance with the appeal procedure as
described by the Agreement within the time limits provided
This letter was handed to Wilson by Foreman Charlie Bush on March 26, prior
to the second trial, which was held that night at 7.30 p. in Wilson showed the
letter to his foreman, Doerdorf, and asked him if it was the result of delinquency
in union dues. Doerdorf replied that he did not know, and suggested that Wilson
consult Kelly, steward of Local 23120. Wilson showed the letter to Kelly and
suggested that he had better pay his dues Kelly replied, "That's the way it looks
to me. I would not say positively on that I don t know much about that, but it
don't read like I figured it would."
On March 26, Wilson arrived at the Central Labor Templer at 4th and
Columbia Streets in Lafayette at about 7:30 p. in. He went into the meeting room
and sat down. He was under the impression that his trial would be held in this
hall. After a short time, he remembered that the trial was scheduled to be held
at 10th and Main Streets. He immediately went to the latter place, arriving there
about 8 or 8:05 p.m. He met Robinson and told him why he had not arrived there
"'The Central Labor Temple was A. F. of L. headquarters, and Local 23120 sometimes
held its meetings there.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 7:30 pm. Robinson informed him that the trial had been concluded, and the
verdict was that he be expelled from Local 23120. That night, Wilson again
endeavored to pay his dues in Local 23120, to Robinson. However, the latter
refused to accept them.
The next day, March 27, Local 23120 informed Wilson by letter of the findings
of the Trial Committee. The letter reads as follows:
MARCH 27, 1945.
DEAR SIR and BROTHER: The statement below is an exact copy of decision of
Trial Committee that sat in session on Mar. 21, 1945, and reconvened on
Mar. 26, 1945.
STATEMENT
We, the undersigned do find one Warren Wilson guilty as charged, and
order immediate suspension of membership. This order must be carried out by
Mar. 29, 1945 at 3:00 P M.
(Signed) Chr. of Com D. R. KELLEY
Member ORA MALASKA
11 CLARENCE COZAD
Any questions on this matter should be directed to Bus Agt.
(Sgd) RAY ROBINSON,
Fin Sec. and Bus Agt
That evening Wilson had a conversation with Kline,' the then manager of the
Respondent's industrial relations department. Wilson protested the action of Local
23120, in cancelling his membership, because he had previously resigned from
Local 23120. Wilson's testimony in this respect reads as follows :
Well, I explained to him [Kline] where I didn't think it was right, and I
told him I would appeal to the Labor Board and he said they had orders to
carry on with their contract. I told him that might be so but it was the with-
drawal period12 now and how could they [Local 23120] can me in that
withdrawal period ... Well, he said I had complained on the situation, said I
was going to take it to the Labor Board, and they figured they had better get
an arbitrator.
According to Robinson's testimony, on March 28, he was informed by Kline
that Wilson was protesting the action of the Respondent because of the unfair
action taken by Local 23120, and that the Respondent was going to take whatever
steps it considered necessary to protect Wilson's interests. Robinson further testified
that he consulted E. R. Stahl, president of the International Council of Aluminum
Workers' Union, A. F of L, and that the latter instructed him to insist on Wilson's
discharge by the Respondent. Robinson also informed Kahle, the Respondent's
Works Manager, that he had been informed by one of the plant committeemen
of Local 23120 that the employees would not work with Wilson and if the
Respondent did not discharge him, there would be a strike.
According to Works Manager Kahle, he was informed that the reason Local
23120 had cancelled Wilson's membership was because of Wilson's activity in
behalf of the Steelworkers and that if Wilson were allowed to work in the plant
there would be a strike. Kahle's testimony in this connection reads as follows:
We had previous knowledge of that because of the A. F. of L.'s inter-
ference in the case in which they disclosed that and threatened a work
" Kline died sometime prior to the instant hearing.
12 Local 23120 had previously advertised the fact that its contract with the respondent
would expire on March 24 , 1945, and that during the period from March 24 to March 31, 1945,
inclusive, any member of Local 23120 could withdraw his membership with impunity.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS 763
stoppage if we put the man back to work . Well, our thought certainly was
we wanted to determine under the maintenance of membership clause we
were giving the employee an opportunity That was the reason for taking it
to arbitration in the light of the fact the American Federation Local had
definitely stated if the man went back to work we faced a work stoppage
I think I was in telephone conversation with Ray Robinson about it, yes
The Respondent and Local 23120 agreed to submit Wilson's case to an arbitrator
Wilson was not consulted in the matter The Respondent requested the War Labor
Board in Chicago, Illinois, to send an arbitrator to Lafayette for this purpose.
The arbitrator, Lionel Ruby, held a hearing at the plant on March 31, 1945,
which was attended by Wilson The arbitrator's report reviewed the history of
the dispute, including both the first and second trials of Wilson In respect to the
first trial, the arbitrator's report reads as follows
According to the transcript of the testimony at the trial Mr Wilson had
violated his oath of allegiance to the Union by attempting to organize a rival
Union which was contesting the majority status of Local #23120 at the
Company's plant
His organizing attempts, according to the Union, occurred in connection
with the National Labor Relations Board elections of March 6, 7 and 8,
and during the run-off elections of March 13, 14, and 15 He was specifically
charged with handing out brown application cardr for membership in the rival
C I 0 union, [Italics supplied ]
The findings of the arbitrator concluded as follows.
The Award
The undersigned finds that Mr. Wilson was at one time a union member
in good standing , that he is no longer a member in good standing, and that
according to the contract between the parties , Article 2, the Company should
discharge Mr. Wilson forthwith
(signed ) LIONEL RUBY,
Arbitrator.
The arbitrator did not act for or on behalf of the War Labor Board , but as a
private individual His report was released on April 5, 1945, and immediately upon
receipt of same, the Respondent discharged Wilson . The Respondent furnished
Wilson with a "Report of Unemployment," in which it was stated that he was
"dismissed for failure to comply with the maintenance of membership clause in
Union contract," and that the "Last date for which wages were payable" was
March 30, 1945.
CONCLUDING FINDINGS
The original contract, dated July 20, 1943, between the Respondent and Local
23120 was to remain in force and effect until March 24, 1944, and thereafter until
modified after 30 days' notice On February 11, 1944, the parties entered into an
addendum to that contract which stated specifically that the contract would expire
on March 24, 1945. The record is clear and the undersigned finds that the contract
did expire on March 24, 1945. Wilson was discharged by the Respondent on April
5, 1945, about 12 days after the expiration of the contract Therefore the contention
of the Respondent that Wilson's discharge was pursuant to the provisions of the
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract, is without merit.13 The record further shows, and the undersigned finds,
that both the Respondent and Local 23120 were well aware of the fact that the
contract would expire on March 24, 1945. Local 23120 wrote the Respondent, on
January 25, 1945, that it desired to negotiate for a new contract. This letter was
followed by another letter, on January 27, 1945, which is set out in full above, in
which Local 23120 outlined, in detail, the essential features that it desired to
incorporate in the new contract. Several meetings between the Respondent and
Local 23120 were held in respect to the new contract However, negotiations were
discontinued under instructions from the Respondent's head office in Pittsburgh,
Pennsylvania, and a new contract was finally consummated in Pittsburgh in May
1945, as related above. On February 19, 1945, a consent election agreement was
entered into by the Respondent and Local 23120, and a few days thereafter, Local
23120 issued a circular headed "Membership Withdrawal Privilege," in which it
stated that the contract would expire on March 24, 1945. This circular was dis-
tributed throughout the plant.
If the Respondent discharged Wilson under the honest, but mistaken belief
that the contract was still in force and effect, or even if the contract 'bad still
been in effect at the time of the discharge, the Respondent would not have been
justified under the Act, in the instant case, in discharging Wilson pursuant to the
demand of Local 23120, since the Respondent knew that the demand was based upon
Wilson's expulsion from Local 23120 because of his activities on behalf of the
Steelworkers during the time that a question of representation was pending. The
Respondent admitted that it possessed this knowledge prior to the discharge of
Wilson. The Arbitrator's report, which was received by the Respondent, prior
to Wilson's discharge reads, in part, as follows :
His [Wilson's] organizing attempts, according to the Union occurred in
connection with the National Labor Relations Board elections of March 6, 7
and 8, and during the run-off elections of March 13, 14, and 15. He was
specifically charged with handing out brown application cards for member-
ship in the rival C. I. O. union.
In the Portland Lumber Mills case,14 decided by the Board in October 1945, the
Board held that the discharge of an employee who had been expelled from mem-
bership in a union which had a closed-shop contract with the Respondent with
knowledge on the part of the Respondent that the expulsion was due to the fact
that the employee had acted as an observer for a rival union in a Board conducted
election, was a violation of Section 8 (3) of the Act, even though the Respondent
believed in good faith, though mistakenly, that the terms of the closed-shop
contract required it to accede to the contracting union's demand for the employee's
discharge.
In the Rutland Court case15 the Board held that a closed-shop contract does not
justify an employer in discharging employees whom he knows the contracting
union has expelled from membership simply because they sought to exercise
their statutory right, at a time when there was a representation question pending,
18 Phelps Dodge Copper Products Corporation, Habirshaw Cable and Wire Division,
63 N L R. B. 686 The Board held in this case that the discharges , allegedly pursuant to the
terms of a maintenance of membership clause, were discriminatory and in violation of the Act,
since they occurred the day after the contract had expired , although the union requested the
discharges before the contract had expired.
14 Matter of Portland Lumber Mills , 64 N L R B. 159.
ie Matter of Rutland Court Owners , Inc., 44 N. L. R. B. 587, and supplemental decision,
46 N. L. R. B 1040; see also The Wallace Corporation , 50 N L. R. B. 138, 141 F (2d) 87
(C C. A 3), 323 U. S. 248
ALUMINUM COMPANY OF AMERICA , LAFAYETTE WORKS 765
to designate a new representative for future bargaining. "To hold otherwise
would mean that an employer and a union official, acting in concert, could maintain
one labor organization in perpetuity as the bargaining representative by the simple
device of expelling any employees who wished to have a different representative
when the question of the renewal of the contract arose."
Wilson was tried, in absentia, on March 21 by a trial committee appointed by
Local 23120, which recommended that he be suspended from membership immedi-
ately. After a protest by Wilson, Local 23120 decided to give him another trial
on March 26. However, on March 24, the day on which the contract expired,
Local 23120 wrote the Respondent and demanded Wilson's discharge. The Re-
spondent took no action until March 26, when it notified Wilson of the action taken
by Local 23120. Wilson protested and informed the Respondent that he would
file charges with the Board if the Respondent carried out the demands of
Local 23120. The Respondent then made arrangements for a hearing before
an arbitrator. The arbitration was arranged by the Respondent and Local 23120,
without prior consultation, approval or consent of Wilson. At no time did Wilson
agree to be bound by the decision of the arbitrator. What the Respondent and
Local 23120 sought in effect to do was to have an arbitrator decide whether an
unfair labor practice would be committed if the Respondent were to discharge
Wilson. The Board, under the Act is exclusively charged with the duty of deter-
mining unfair labor practices.16 A private agreement to which the Board is not a
party, cannot operate to deprive the Board of its function under the Act.
The Respondent contends that a determination of the charges against the
Respondent in this case places in issue the legality of the contract between the
Respondent and Local 23120 dated July 20, 1943, and therefore this case comes
within the purview of the "rider"17 to the current appropriation of the Board,
therefore the Board is precluded from proceeding with the case. The undersigned
finds no merit in this contention.
In summary, the undersigned finds that, in the circumstances herein, the
Respondent was not justified in discharging Warren Wilson upon the demand of
Local 23120 upon the ground that Wilson was no longer a member of Local 23120,
or upon the threat that the members of Local 23120 would go out on strike if he
was not discharged. On the contrary, the Respondent, having knowledge of the
illegal purposes behind the demand, was in duty bound to refuse to comply there-
with. Having discharged Wilson, the Respondent, even though acting in good
faith, has violated the Act. The undersigned further finds from the entire record
in the case, that the Respondent, by discharging Warren Wilson on April 5, 1945,
1 Section 10 (a) of the Act reads as follows • "The Board is empowered , as hereinafter
provided, to prevent any person from engaging in any unfair labor practice ( listed in Sec-
tion 8) affecting commerce This power shall be exclusive, and shall not be affected by any
other means of adjustment or prevention that has been or may be established by agreement,
code, law, or otherwise "
'' The "Rider," which is attached to the current appropriation for the Board contained in
the Labor-Federal Security Appropriation Act, 1945, approved June 28 , 1944 . Public Law 373,
reads as follows:
No part of the funds appropriated in this title shall be used in any way in connection
with a complaint case arising over an agreement , or a renewal thereof, between manage-
ment and labor which has been in existence for three months or longer without complaint
being filed by an employee or employees of such plant : Provided, That, hereafter, notice
of such agreement or a renewal thereof shall have been posted in the plant affected for
said period of three months , said notice containing information as to the location at an
accessible place of such agreement where said agreement shall be open for inspection by
any interested person: Provided further, That these limitations shall not apply to agree-
ments with labor organizations framed in violation of Section 158, paragraph 2, title 29,
United States Code.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminated against him in regard to the hire and tenure of his employment,
discouraged membership in United Steelworkers of America, C. I. 0., and inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent, set forth in Section III above, occurring
in connection with the operations of the Respondent as 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in
unfair labor practices affecting commerce, it will be recommended that it cease
and desist therefrom and take certain affirmative action which the undersigned
finds will effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Warren
Wilson. It will therefore be recommended that the Respondent offer Wilson
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges. It will be further
recommended that the Respondent make whole Warren Wilson for any loss of pay
he may have suffered by reason of the Respondent's discrimination against him
by payment to him of a sum of money equal to the amqunt that he would normally
have earned as wages during the period from March 30, 1945, the date on which
he was last paid by the Respondent, to the date of the Respondent's offer of
reinstatement, less his net earnings's during said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of Warren
Wilson, thereby discouraging membership in United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, the Respondent has en-
gaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
38 By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere than
for the respondent , which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber
Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, and
county, municipal, or other work-relief projects shall be considered as earnings . See Republic
Steel Corporation v N. L. R. B., 311 U. S. 7.
ALUMINUM COMPANY OF AMERICA, LAFAYETTE WORKS
RECOMMENDATIONS
767
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, Aluminum Company of America,
Lafayette Works, Lafayette, Indiana, its officers, agents, successors and assigns
shall :
1 Cease and desist from:
(a) Discouraging membership in United Steelworkers of America, affiliated with
the Congress of Industrial Organizations, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees, or by
discriminating in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment ;
(b) Engaging in any like or related act or conduct, interfering with, restraining,
or coercing its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America, affiliated
with the Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.19
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Warren Wilson immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(b) Make whole Warren Wilson for any loss of pay that he may have suffered
by reason of the Respondent's discrimination against him, by payment to him of
a sum of money equal to the amount which he normally would have earned as
wages during the period from March 30, 1945, the date on which he was last paid
by the Respondent, to the date of the Respondent's offer of reinstatement, less his
net earnings20 during said period;
Post at its plant in Lafayette, Indiana, copies of the notice attached hereto,
marked "Appendix A " Copies of said notice, to be furnished by the Regional
Director for the Eleventh Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
ii See Portland Lumber Mills , 64 N. L. R. B. 159, in which the Board said "Normally in
cas