Local 271 of the Int'l Association of Machinists

National Labor Relations Board - Board Decisions

Mar 26, 1959

123 N.L.R.B. 426 (N.L.R.B. 1959)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 271 of the International Association of Machinists, AFL-
CIO [Hardie -Tynes Manufacturing Company] and J. W. Chaney
John West, An Agent of Local 271, International Association of
Machinists, AFL-CIO and J . W. Chaney
Lloyd C. Bradley, An Agent of Local 271, International Asso-
ciation of Machinists , AFL-CIO and J . W. Chaney
Local 271 of the International Association of Machinists, AFL-
CIO and Dan M. Jones
Lloyd C. Bradley, An Agent of Local 271, International Associa-
tion of Machinists , AFL-CIO and Dan M. Jones
John West, An Agent of Local 271, International Association of
Machinists, AFL-CIO and Dan M. Jones
Local 271, International Association of Machinists , AFL-CIO
and Paul Schnader
John West , An Agent of Local 271, International Association of
Machinists, AFL-CIO and Paul Schnader
Lloyd C. Bradley, An Agent of Local 271, International Associa-
tion of Machinists , AFL-CIO and Paul Schnader . Cases Nos.
10-CB-643, 10-CB-644, 10-CB-645, 10-CB-646, 10-CB-647, 10-
CB-648, 10-CB-649, 10-CB-650, and 10-CB-651. March 06, 1959
DECISION AND ORDER
On April 25, 1958, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
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 exceptions and brief, and the entire record
in these cases, and hereby adopts the findings and conclusions of
the Trial Examiner only to the extent consistent with our decision
herein.
The Trial Examiner found that the Respondents did not violate
Section 8(b) (2) and (1) (A) of the Act by attempting to cause the
Company to discharge the three complainants 1 herein. We dis-
agree, for the following reasons :
1 Schnader , Chaney, and Jones.
123 NLRB No. 41.
LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 427
1. During the period material herein, the Company and the Re-
=spondent Union had a contract which required maintenance of
membership in good standing for those employees who voluntarily
.joined the Union. The bylaws of the Union provided that a member
who held two jobs would be subject to having charges filed against
him and the Union could take such action as it thought fit.
The three complainants, at the time of the incident herein, were
employed by the Company and each also held another job. They
were members of the Union. On December 12, 1957, the three were
called to a company office where the latter's president, Stobert, and
West and Bradley, business representatives of the Respondent Union,
among others, were present.
The three complainants, who were credited by the Trial Examiner,
testified, inter alia, that Business Representative West told Company
President Stobert that the contract required maintenance of mem-
bership in good standing and that, as the complainants had violated
the Union's bylaws, the Company would have to discharge them.
They further testified that President Stobert stated that he did not
read the contract that way and that before he would take any action
against the three employees, the contract would have to spell out
such a rquirement in no uncertain terms. West's response, accord-
ing to the complainants, was to threaten Stobert with labor trouble
if he did not comply.2
Business Representative West testified 3 that he had made a verbal
agreement with the Company that the latter would make, and post, a
rule prohibiting the holding of other jobs by its employees on pain
of discharge. He further testified that he asked the Company to
discharge the three complainants, but that such request was made
pursuant to the verbal agreement and not the written contract and
the Union's bylaws. In partial agreement, the three complainants
testified that West, in addition to requesting their discharge pur-
suant to the contract, also asked for their termination pursuant to
this alleged verbal agreement, but that President Stobert denied
making any such agreement, and refused to discharge them.
After the above discussion had taken place, the meeting termi-
nated. The three complainants, at the time of the hearing, were
still employed by the Company and were also working for other
employers. The Respondents apparently have made no further at-
tempts to get the Company to take action against them.
2 Although the Trial Examiner credits the testimony of the three complainants , and sets
forth part of their testimony in the Intermediate Report, he omits from the report their
testimony that west actually requested the Company to discharge them. Instead, the
import of that part of their testimony set forth in the Intermediate Report (excepting
perhaps Jones' testimony) is that west -merely made a conditional request for their dis-
charge, if they should lose their good standing in the Union.
I The parties stipulated that three other witnesses would testify to the sane effect
as west.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On this state of facts, the Trial Examiner found no violation of
the Act. Although his rationale is not clear, he apparently believed
that in order to find a violation herein, it was necessary to show
actual discrimination.4 Obviously, it is also a violation of Section
8(b) (2) and (1) (A) of the Act to attempt to cause discrimination,
which occurred here.
It is clear that the parties' written contract does not provide that
employees be discharged if they hold two jobs, but merely provides
for maintenance of membership in good standing. Under such cir-
cumstances, the Respondents could lawfully seek to have the Com-
pany terminate the employment of the three complainants, pursuant
to that contract, only if they had not paid their initiation fees and
dues. We find, therefore, that, as West's demand for their discharge
was based at least in part on the written contract, and was predicated
on their failure to perform an obligation of union membership other
than the payment of dues and initiation fees, the Respondents
violated Section 8(b) (2) and (1) (A) of the Act.5
2. Although the Intermediate Report is not clear, it seems that
one reason why the Trial Examiner found no violation herein was
because he apparently felt that, as a practical matter, no real harm
had been done. The Trial Examiner characterized the Respondents'
actions as "nothing other than the letting off of steam" and he found
that "no one was hurt as the result of the alleged verbal explosion."
However, the Respondents did attempt to cause the discharge of the
three complainants on the above occasion. Therefore, a complaint
having been issued and the case brought for hearing before the Trial
Examiner, he erred in not finding that the Respondents had violated
the Act.
We must, nevertheless, confess to a certain sympathy with this
view of the Trial Examiner. As set forth above, the Company re-
fused to comply with the Respondents' demand that it take action
against the complainants; this incident has not been repeated; and
the affair has apparently blown over and been forgotten. However,
as it violation of the Act has occurred herein, we shall provide a
remedial order.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, as set forth above, which have
been found to constitute unfair labor practices, occurring in connec-
4It also seems that the Trial Examiner found no violation for another reason which
we shall discuss later in the text.
b In view of our finding of a violation because of West's demand pursuant to the written
contract, we find it unnecessary to, and we do not, pass upon the question whether the
parties had the verbal agreement alleged by West. The Trial Examiner apparently found
that the parties had no such agreement. Cf. Daugherty Company, Inc., 112 NLRB 98T;
International Longshoremen's and Warehousemen's Union, Local No. 10, Independent
( Pacific Maritime Association ), 121 NLRB 938.
LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 429
t.ion with the operations of the Company involved herein, have a
close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act.
ORDER
Upon the entire record in these cases and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Local 271
of the International Association of Machinists, AFL-CIO, its offi-
cers, representatives, successors, assigns, and agents, including the
Respondents John West and Lloyd C. Bradley, shall:
1. Cease and desist from :
(a) Attempting to cause Hardie-Tynes Manufacturing Company,
or any other employer, to discriminate against J. W. Chaney, Dan
M. Jones, and Paul Schnader, or any other employee, in violation
of Section 8(a) (3) of the Act or to discriminate against an em-
ployee with respect to whom membership in such organization has
been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership.
(b) In any like or related manner restraining or coercing em-
ployees of Hardie-Tynes Manufacturing Company, or any other
employer, in the exercise of their rights guaranteed in Section 7 of
the Act, except to the extend that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized by Section 8(a) (3) of the
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its offices in Birmingham, Alabama, copies of the
notice attached hereto marked "Appendix." G Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondents, be posted immediately
upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter in conspicuous places where notices to members are
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish to the Regional Director for the Tenth Region signed
copies of the notice attached hereto as an Appendix for posting at
the premises of Hardie-Types Manufacturing Company, in places
where notices to its employees are customarily posted, if it is willing
to do so.
(c) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Order, what steps the Respond-
ents have taken to comply herewith.
MEMBER BEAN, dissenting :
I cannot agree with my colleague that the Respondents violated
the Act by attempting to cause the Company to discharge the Charg-
ing Parties.
If the Company on its own motion had discharged the Charging
Parties for holding a second job elsewhere, I would think that such
facts, standing alone, do not amount to a violation of Section
8(a) (3) of the Act.7 I am not satisfied here, any more than I was
in Daugherty," that if the Company had acted, not on its own mo-
tion, but because the Union had demanded such action on the ground
that the Charging Parties held second jobs elsewhere, a violation of
Section 8(a) (3) would have spelled out. It necessarily follows that
the Union would not be in violations of Section 8(b) (2) by causing
or attempting to cause the Company to make the discharges.9
It appears irrelevant whether or not the Company has a contract
obligating it to discharge employees holding second jobs elsewhere,
although parenthetically I might say that, like the Trial Examiner,
I do not discredit uncontradicted testimony that there was such an
oral agreement which the Company later refused to honor. It
seems to me to be likewise irrelevant that the Union had an appar-
ently lawful maintenance-of-membership contract with the Company
as well as a rule or bylaw stating that its members should not hold
second jobs, for I do not see how either converts otherwise lawful
v Section 8(a) (3) provides in pertinent part that it is an unfair labor practice for an
employer to make discharges to encourage or discourage membership in any labor organiza-
tion. As the Board and the courts have repeatedly held, an employer does not violate this
provision by making discharges for any other reason, whether good or bad , or for no
reason at all.
8 Daugherty Company, 112 NLRB 986, 989.
'Section 8(b) (2) provides in pertinent part that it is an unfair labor practice for a
labor organization or its agents to cause or attempt to cause an employer to violate
Section 8 ( a)(3). As has frequently been held , a labor organization does not violate this
provision by attempting to cause discrimination for any reason not related to membership
or nonmembership . Daugherty Company, supra. See also International Longshorermen's
and Warehousemen's Union ( Pacific Maritime Association), 121 NLRB 938.
LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 431
action into violations of Section 8(a) (3) or 8(b) (2). See the
International Longshoremen's Union, etc. case, supra, where at page
939 it was pointed out that the general policy of the respondent
labor organization was to discipline its own members who cursed
their bosses, and it was applying the same union policy to the com-
plainant, who was not one of its members. The dismissal of the
complaint in that case can hardly be taken to mean that the con-
trary result would have been reached if the complainant had been a
member of the respondent labor organization and thus subject to
its rules.
A review of the facts in this case satisfies me that the actual
reason for the Respondents' attempt to cause the discharge of the
Charging Parties is their holding of second jobs. I cannot regard
this economic reason as outlawed by the Act just because it was a
union which took the action. Despite the fogginess occasioned by
the maintenance-of-membership contract or the Union's rule making
this economic reason a matter of general union policy, it should not
obscure the testimony that the discharges were not requested for an
unlawful reason.
Accordingly, I would dismiss the complaint.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 271 OF THE INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL-CIO, AND ALL EMPLOYEES OF
HARDIE-TYNES MANUFACTURING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT attempt to cause Hardie-Tynes Manufacturing
Company, or any other employer, to discriminate against J. W.
Chaney, Dan M. Jones, and Paul Schnader, or any other em-
ployee, in violation of Section 8(a) (3) or to discriminate against
an employee with respect to whom membership in such organiza-
tion has been denied or terminated on some ground other than
his failure to tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining mem-
bership.
WVE WILL NOT in any like or related manner restrain or coerce
employees of Hardie-Tynes Manufacturing Company, or any
other employer, in the exercise of their rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment as authorized by Sec-
tion 8(a) (3) of the Act.
LOCAL 271 OF THE INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
By-------------------------------------
(JOHN WEST, Agent)
By-------------------------------------
(LLOYD C. BRADLEY , Agent)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On January 3, 1958, J. W. Chaney filed three identical charges with the Tenth
Region of the National Labor Relations Board alleging unfair labor practices by
(1) Local 271 of the International Association of Machinists, AFL-CIO; (2) John
West, an agent of Local 271, International Association of Machinists; and (3)
Lloyd C. Bradley, an agent of Local 271, International Association of Machinists.
On the same day Dan M. Jones and also Paul Schnader each filed three charges
identical with those above mentioned.
All nine charges alleged that (a) Local 271; (b) John West; and (c) Lloyd C.
Bradley had:
On or about December 12, 1957, caused or attempted to cause Hardie-Tynes
Mfg. Co. to discriminate in regard to the hire and tenure of employment of
the undersigned, in order to encourage or discourage membership in the said
labor organization.
The charges were received in the Atlanta, Georgia, office of Region Ten, National
Labor Relations Board on January 6, 1958, and docketed as, 10-CB-643 through
10-CB-651.
The Regional Director for the Tenth Region of the Board under date of Feb-
ruary 25, 1958, issued an order consolidating the cases for purposes of hearing
together with a consolidated complaint and notice of hearing, which was duly
served on the parties, all pursuant to Section 10(b) of the National Labor Rela-
tions Act and Sections 102.15 and 102.33 of the Board's Rules and Regulations,
Series 6, as amended.' The complaint alleged that Local 271 of the International
Association of Machinists, AFL-CIO, and its agents, John West and Lloyd C.
Bradley, had engaged in and were engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.2
With respect to the unfair labor practices the complaint alleged:
Respondent Union had in force and effect at all times material herein a by-
law, rule, or regulation forbidding its members holding two or more jobs
simultaneously in the machinists' trade and providing for disciplinary action
in the case of violations thereof.
On or about December 12, 1957, the Respondents by Respondent West and
Respondent Bradley attempted to cause the Employer to discharge J. W.
1 A copy of the original charges in Cases Nos. 10-CB-643 through 10-CB-651, inclusive,
filed January 3, 1958, was served upon the respective Respondents on January 6, 1958.
2 Local 271, International Association of Machinists, AFL-CIO, is herein called the
Respondent Union, John West, an agent of the Respondent Union, is herein called
Respondent West, and Lloyd C. Bradley, an agent of the Respondent Union, herein called
Respondent Bradley (Respondent Union, Respondent West, and Respondent Bradley are
collectively called the Respondents).
LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 433
Chaney, Dan M . Jones and Paul Schnader who are members of Respondent
Union for violating the said bylaw , rule or regulation.
The Respondents duly filed an answer in which they denied they had engaged
in any of the unfair labor practices alleged.
Pursuant to notice a hearing on the consolidated complaint was held at Bir-
mingham, Alabama , March 18, 1958, before Louis Plost , the duly designated Trial
Examiner . The General Counsel was represented by counsel , the Respondents by
a Grand Lodge Representative of the International Union, they being herein re-
ferred to in the names of their principals . The parties participated in the hearing
and were afforded full opportunity to be heard , to examine and cross -examine
witnesses , to introduce evidence bearing upon the issues , to argue orally, and to
file briefs , proposed findings of fact, and/or conclusions of law with the Trial
Examiner . The parties waived oral argument and the right to file briefs.
At the close of the General Counsel 's case the Trial Examiner denied a motion
by the Respondents to dismiss the complaint.
The Trial Examiner granted a motion by the General Counsel to conform the
pleadings to the proof with respect to spellings, names , places, and like minor
variances.
Upon the entire record, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Hardie -Tynes Manufacturing Company, not a party but the Employer of
the Charging Parties herein and under contract with the Respondent Union, is
now and has been at all times material herein , an Alabama corporation main-
taining its principal office and place of business at Birmingham , Alabama, and is
engaged in the business of manufacturing and metal machine work.
The Hardie -Tynes Manufacturing Company, during the past 12 months, which
period is representative of all times material herein , performed contracts for out-
of-State customers valued in excess of $500 ,000, and performed contracts directly
connected with the National Defense effort valued in excess of $ 100,000.
II. THE RESPONDENTS
The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
Respondent John West , at all times material herein, was a duly authorized agent
of said Respondent Union with authority to act in its behalf.
Respondent Lloyd C. Bradley, at all times material herein , was a duly au-
thorized agent of said Respondent Union with authority to act in its behalf.
III. THE UNFAIR LABOR PRACTICES
The Respondent Union and Hardie -Tynes Manufacturing Company (Hardie-
Tynes ) are and were at all times material herein parties to a valid collective-
bargaining contract which contains the usual maintenance-of-membership clause.
The complaint alleges violation of Section 8(b)(1)(A ) and (2 ) of the Act by
the Respondents in that they attempted to cause Hardie-Tynes to discriminate
against certain employees . The pertinent section reads:
[Sec. 8] (b) It shall be an unfair labor practice for a labor organization or
its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provided , That this paragraph shall not impair the
right of a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein; or (B) an employer in the
selection of his representatives for the purpose of collective bargaining or the
adjustment of grievances;
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a) (3) or to discriminate against an em-
ployee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership ; [Emphasis supplied.]
508889-60-vol. 123-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paul Schnader, the Charging Party in 10-CB-649, 650, 651, testified that he has
been employed by Hardie-Tynes for some 10 months; that together with his job
at Hardie-Tynes he was regularly employed on a job elsewhere, working at the
second job after he finished for the day at Hardie-Tynes.
Schnader further testified that some 2 months before the hearing, which time
he could not fix more definitely by day, date, or month 3 he was called into the
office of his supervisor; that upon arrival there he found present, J. W. Chaney
(the Charging Party in 10-CB-643, 644, 645), Dan M. Jones (Charging Party
in 10-CB-646, 647, 648), Lloyd C. Bradley and John West, business representa-
tives of the Respondent Union, Herman Taylor and Harry Ullman,4 and Mr.
Stobert, the president of Hardie-Tynes. According to Schnader, Business Repre-
sentative West "opened the meeting by disclosing his purpose." Schnader testified:
He [West] had opened up this meeting and to the best of my knowledge he
read from the By-Laws of the union an article stating there was a regulation
in the By-Laws opposing work being done part time, on part time jobs, and
that we were in violation of that By-Law so far as the union was concerned.
Q. (By Mr. Smith.) Now, did he stop there or did he go further or did
anything else happened?
A. At that- point he had made the statement that it was known that we
were working part time jobs and that we were in violation of the Union By-
Laws, and under those conditions we were subject to dismissal from the
union. [Emphasis supplied.]
According to Schnader, Business Representative West then asked Stobert "his
opinion" on an employee's holding a job elsewhere while in his employ and
Stobert replied that he did not like it,
But he had no actual objection against it. In other words, he told us what
we did after 3:30 was strictly our business.
Schnader's testimony, which the Trial Examiner believes will be clearer if quoted
than paraphrased, continued as follows:
Mr. SMITH: ... Did Mr. West say anything else to Mr. Stobert?
The WITNESS: I believe at that point Mr. West had made the statement to
Mr. Stobert that in the past at one time or another Mr. Stobert said that he
would post a notice in the shop that anybody that was known to be working
a part-time job would be subject to dismissal from the company.
The WITNESS: From that point he told Mr. Stobert if we didn' t remain
members of the union in good standing for the duration of the contract it
would be the company's duty according to the company' s contract , to dismiss
us. [Emphasis supplied.]
Mr. Stobert said he would not go along with that. Mr. West stood up and
told him if he didn't he would have some of the damndest labor trouble he
had ever had.
Upon this note the meeting adjourned.
Schnader testified that neither he nor any other employee was discharged as a
result of the meeting, there has been no change in his relationship with Hardie-
Tynes since the meeting, he being still employed there.
The Respondent Union has not caused or attempted to cause "labor trouble"
at Hardie-Tyner despite the alleged threat made by its business agent. Apparently
nothing other than the "letting off of steam" at the meeting ever occurred and
no one was hurt as a result of the alleged verbal explosion . According to Schna-
der, who is credited, the business agent stated Schnader was subject to dismissal
from the Union, and merely asked for the Employer' s opinion on an employee's
holding two jobs and as herein found Schnader was not expelled from the Respond-
ent Union, and still maintains his membership as required as a condition of his em-
ployment by Hardie-Tynes.
Dan M. Jones, the Charging Party in 10-CB-646, 647, 648, corroborated
Schnader's testimony with respect to the meeting above referred to. Jones testified
that he has been employed by Hardie-Tynes for 41 years and has been a member
of the Respondent Union since Hardie-Tynes and the Respondent Union entered
3 Other testimony fixed the date as December 12, 1957.
'Not Identified by Schnader but who were later shown to be members of the Union
Employees Committee in the plant.
LOCAL 271 OF THE INT 'L ASSOCIATION OF MACHINISTS 435
into contract , which he estimated to be "five years"; he testified that he held
another job with his job at Hardie-Tynes , that at the meeting West stated that
Stobert had agreed to post a notice that employees holding other jobs in addition
to their jobs with the Company would be discharged, and that Stobert denied
ever agreeing to do so; that West called attention to the fact that Jones held two
jobs and:
The WITNESS : He said: "If you don't discharge him it will be in violation
of the contract ." Also when he said about promising to put that verbal agree-
ment up there , the notice , that anybody working two jobs would be dis-
charged, and he asked him not to hedge out on him.
TRIAL EXAMINER : Did he specifically ask him to discharge you?
The WITNESS : He said: "If you don 't discharge him there will be the
damndest labor trouble ... .
Jones further testified:
.Q. (By Mr. Fagan .) And you went on back to work and nothing has ever
occurred?
A. Yes, that is right.
Q. Nothing has happened to you or any other employee since that, has
there?
A. No, nothing has happened . It is just like it was.
J. W. Chaney , 10-CB-643, 644, 645 , the remaining member of the group filing
the charges upon which the instant matter is based, corroborated the previous
testimony regarding the meeting , which he fixed as occurring December 12, 1957,
testified that he has been employed by Hardie-Tynes for 17 years, and a member
of the Respondent Union "ever since Hardie-Tyner has been organized ." Chaney
further testified:
Q. Have you ever worked a part-time job in addition to your duties at the
Hardie-Tynes Manufacturing Company?
A. I have and do.
Q. Has the company ever asked you or told you to quit your job, your
second job , that is?
A. No; the company hasn't no.
Q. Has the union?
A. Well, when I read that piece out of the By-Laws about working two
jobs, a part-time job, that is the only time they told me.
Regarding his working conditions after the December 12 meeting Chaney testified:
Q. Have they at any time said anything to you at all about working on
another job?
A. No, the company hasn't.
Q. Do you know of anybody who has been discharged by this company
because they worked two jobs?
A. No.
Q. Do you know anybody who has been discharged by the company be-
cause of non-payment of dues?
A. No.
It is clear from the testimony of the three Charging Parties, which is credited,
that although the Respondent Union through its business agent informed them that
the Union 's bylaws prohibited a member holding two jobs simultaneously, they
were not threatened with loss of employment by the Respondent Union , nor was
their discharge requested because they ' violated the Union 's rules.
John R. West, the business representative of the Respondent Union, testified
that on behalf of the Union he had made a verbal agreement with Hardie-Tynes
that it make and post a rule prohibiting the holding of other jobs by its employees
on pain of discharge ; that he called President Stobert for a meeting regarding
the violation of this rule by the Charging Parties and Stobert suggested calling
them and the Union 's committee in the plant to the meeting ; that the meeting was
held as agreed and that in the presence of all according to West:
I requested Mr. Stobert and pointed out to him the verbal agreement we had
reached and asked Mr. Stobert to discharge these employes because they
were in violation of the verbal agreement we had reached.
that Stobert stated "he could not do it."
West further testified that his request was not made on the basis of any bylaw
of the Respondent Union but:
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was on the basis that these employees were in violation of the verbal agree-
ment we had with Mr. Stobert and Hardie-Tynes Manufacturing Company.
West, however, admitted that he read the applicable bylaw to the meeting. He
testified:
Q. And you requested Mr. Stobert if these men were in violation of the
company's working rules that he had agreed that they would be discharged?
A. Let me answer that this way: When we go into this type of meetings
I am prone to cover everything on top of the table. Actually I read these
By-Laws for the purposes of these three plaintiffs to show that they were in
violation of the Local Lodge By-Laws but that did not apply as far as me
requesting a discharge because we had a verbal agreement with Hardie-Tynes.
TRIAL EXAMINER: Did you ask that they be discharged?
The WITNESS: Yes, on the violation of the verbal agreement; not on ac-
count of these By-Laws.
Conclusion
That a statute is to be strictly construed is axiomatic.
One must not lose sight of the fact that the Act is concerned only with the
public interest and not with private rights of the individuals who are affected.
Section 8(b)(1)(A) and (2) of the Act upon which the instant matter is
grounded is designed in the public interest to allay industrial strife which inter-
feres with the normal flow of commerce by protecting an employee from an un-
fair labor practice occasioned by a labor organization and is so framed that the
employees, the employer, and the labor organization are all affected.
Subsection (1) (A) of Section 8(b) of the Act prohibits a labor organization
from interfering with employees in their enjoyment of the basic rights guaranteed
in Section 7 of the Act but here the Act envisions that employees are also mem-
bers of a labor organization and in accordance with the theory that it (the Act)
is only concerned with the public interest subsection (1) (A) immediately states
that its provisions "shall not impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or retention of membership therein;"
A labor organization may refuse membership to or deprive individuals of mem-
bership but it cannot go beyond the confines of its own organization and interfere
with the employment rights of any employee by causing an employer to dis-
criminate against such an individual except in the one specified instance provided
in the Act.5
Having in Section 8(b)(1)(A) fixed the relationship of a labor organization
and its members of would-be members the Act, in Section 8(b)(2), immediately
brings the relationship of the labor organization and the employer into play with
respect to the rights of employees.
In Section 8(a)(3) the Act provides that a labor organization and an employer
may enter into a contract which under certain conditions will bind a third party,
not a party thereto, the third party being a member of, or an applicant for, mem-
bership in the labor organization, however Section 8(a) (3) promptly offers pro-
tection to the employee whose employment rights are being affected by this
somewhat unusual legal grant in providing:
That no employer shall justify any discrimination against an employee for
nonmembership in a labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the employee on the
same terms and conditions generally applicable to other members, or (B) if
he has reasonable grounds for believing that membership was denied or
terminated for reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership.
Section 8(b)(2) of the Act in complete harmony and accord with the cited
provision of Section 8(a)(3) prohibits a labor organization from conduct intended:
to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with
5 The "proviso to Section 8(b) (1) (A) protects the union's right to prescribe its own
rules with respect to the acquisition or retention of membership, [but] it does not authorize
the union to extend the effective scope of these rules so that they determine the right of a
member to the acquisition or retention of a job." N.L.R.B. v. Philadelphia Iron Works,
Inc., 211 F. 2d 937, 940-941 (C.A. 3).
LOCAL 2 71 OF THE INT'L ASSOCIATION OF MACHINISTS 437
respect to whom membership in such organization has been denied or ter-
minated on some ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring or
retaining membership. (Emphasis supplied.)
Thus Section 8(a) (3) of the Act is concerned with protecting all the rights
guaranteed employees and the language specifically protecting employees, who are
subject to a contract they may or may not have negotiated is again repeated in
Section 8(b)(2). It is significant that this protection is of employment rights, in
which a labor organization is in a limited manner permitted to interfere.
It is also axiomatic that in construing a statute all its provisions must be read
together. A resume of the meaning of provisions applicable to the instant matter
are in order: (a) Membership in a labor organization may be made a condition
of employment; (b) a labor organization may fix its own rules for membership;
and (c) a labor organization may not meddle with employment except on one
single condition. This provision means that although under its rules a labor
organization may refuse membership it cannot, as long as an employee subject
to the terms of a valid contract continues to tender dues, cause his discharge
either because it will not admit him or has expelled him for any reason other
than such nonpayment; and an employer who would discharge an employee at the
behest of a labor organization at a time he himself had reason to believe that
the employee in question was being denied membership or terminated for some
reason other than nonpayment of dues would himself be engaging in an unfair
labor practice.
The right to select and retain his own employees is jealously guarded by most
employers as a "natural right" while the right of a union to admit and discipline
members is equally sacred to a labor organization, but the right of an employee
to his: job is protected from the caprice of either employer or •union by the re-
quirement that both, parties to a valid contract affecting such employee, must act
before the employee can be separated from his job at the request of the union.
The union, under the language of the Act, must first expel the member and
then request his discharge because only members of the union are entitled to
jobs under the contract. The request having been made, the employer must be
satisfied that the employee has refused to pay the required union dues. He may
discharge for no other reason at the union's behest.
It is quite clear that these two conditions were not met. The Respondent Union
had not expelled the Charging Parties, has not as yet expelled them, it asked
their discharge, the fol-de-rol regarding a verbal contract requiring such discharge
is meaningless, the request was invalid, the employees could not even be so
threatened with loss of employment as to put them in any jeopardy until they
were first expelled from the Union.
The representative of the Respondents, who is a layman, sought an excuse in
equity by the following testimony of Business Representative West:
Q. (By Mr. Fagan.) How many employes have you got unemployed?
A. About 150 of various classifications.
Mr. FAGAN: That is all.
In the, opinion of the Trial Examiner seeking equity was unnecessary, the Act
will sustain the Respondents' position.
Upon all the evidence the Trial Examiner is of the opinion that none of the
Respondents herein has engaged in the unfair labor practices alleged in the com-
plaint and will therefore recommend that the consolidated complaint and each of
the nine cases comprising it, numbered 10-CB-643, 644, 645, 646, 647, 648, 649,
650, 651 be dismissed.
Upon the foregoing findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Hardie-Tynes Manufacturing Company, Birmingham, Alabama, is en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent, Local 271 of the International Association of Machinists,
AFL-CIO, and the Respondents, John West and Lloyd C. Bradley, are respec-
tively a labor organization and agents thereof within the meaning of the Act.
3. The Respondents have not engaged in unfair labor practices within the mean-
ing of Section 8(b)(1)(A ) and (2 ) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]