Mayfair Coat & Suit Co.

National Labor Relations Board - Board Decisions

Feb 20, 1963

140 N.L.R.B. 1333 (N.L.R.B. 1963)

MAYFAIR COAT & SUIT CO. 1333
6. By the foregoing conduct, by interrogating its employees concerning their union
activities, and by notifying employees to abandon the Union if they desired con-
tinued employment, the Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mayfair Coat & Suit Co.' and Alfred Galina
International Ladies' Garment Workers' Union , AFL-CIO, Local
55 and Alfred Galina. Cases Nos. 21-CA-4444 and 21-CB-1746.
February 20, 1963
DECISION AND ORDER
On June 12, 1962, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the Respondents and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding and adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent with the decision
herein.
The Trial Examiner found that Mayfair and the Union discrimi-
nated against the Charging Party, Alfred Galina, in violation of
Section 8(a) (1) and (3) and Section 8(b) (1) (A) and 8(b) (2) of the
Act, respectively. We do not agree.
Mayfair, a manufacturer of ladies' apparel, is a member of the
Los Angeles Coat and Suit Manufacturers' Association that represents
its employer-members in collective bargaining with the Union on a
multiemployer basis. The most recent agreement, which became effec-
tive on January 21, 1960, and had a termination date of May 31, 1962,
provided for an exclusive hiring hall, called the employment bureau,
where union and nonunion employees were to be registered and offered
jobs for which they were qualified in the same sequence in which they
registered with the bureau. The agreement also contained a union-
1 Herein called Mayfair.
140 NLRB No. 130.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop provision that any nonunion employees employed by a member of
the Association were to become members of the Union on the 30th day
following the beginning of their employment with covered companies.
The Trial Examiner found that Galina, who ceased paying union
dues and "fell out" of the Union on May 25, 1959, upon becoming a
supervisor for one of the other companies in the Association, was
entitled to but, contrary to the facts stipulated to by the parties, did
not receive a 30-day grace period when he asked the Union on June 14,
1961, to dispatch him to Mayfair for employment as a nonsupervisory
employee. The Trial Examiner therefore found that the Union by
its refusal to refer Galina from the hiring hall to Mayfair, because he
did not make a $10 part payment on the union initiation fee and con-
sequently lacked good standing in the Union, violated Section
8(b) (1) (A) and 8(b) (2), and Mayfair violated Section 8(a) (1) and
(3) of the Act by its refusal on the same date to employ Galina without
referral or clearance by the Union.
The parties stipulated that Galina had been employed as an operator
under the mentioned 1960 agreement more than 30 days, without pay-
ing the initiation fee required by the agreement. Galina was, therefore,
not in good standing when the Union refused to dispatch him to
Mayfair upon Galina's failure to make a requested partial payment on
the prescribed initiation fee. The General Counsel does not challenge
either the union-security or the hiring-hall provisions of the agree-
ment. And while he concedes that had Galina been dispatched and
hired, Mayfair could have then properly and immediately discharged
him at the Union's request for lack of financial standing under the
contract, the General Counsel nevertheless claims that Galina's delin-
quency did not, in the absence of a contractual provision allowing the
enforcement of the union-security provision at the hiring hall level,
afford the Union and Mayfair respectively a lawful reason for not
first dispatching and hiring Galina. This alone was the sole issue
to be decided.
The Union and Mayfair rely on the Zaich decision 2 in contending
that the Union was under no obligation to refer Galina to Mayfair
until he made the aforesaid payment. The Zaich case involved a sim-
ilar situation : the contract was between an employer association and
a union, provided for a hiring hall, and contained a union-security
clause requiring union membership after 30 days of continuous or
accumulative employment in the multiemployer unit, and the union
refused to refer or dispatch a worker because of dues delinquency
after the 30-day period. The Board adopted the Trial Examiner's
conclusion that the union's dispatching practice, which denied refer-
2Building Material and Dump Truck Drivers Local Union No. 420 etc. (Matt J Zaich
(Jo.), 132 NLRB 1044.
MAYFAIR COAT & SUIT CO. 1335
ral to delinquent employees, properly implemented the union-security
provision and was therefore not unlawful 3
The General Counsel and our dissenting colleague take the position
that the Zaich decision is inapposite on the ground that in Zaich, un-
like here, the agreement expressly authorized the Union to enforce
the union-security clause as a condition of referral under the agree-
ment.4 However, in adopting the Trial Examiner's conclusion in
Zaich, the Board did not indicate or imply that a permissive clause
in the contract of the parties was a prerequisite to the implementation
of the union-security clause at the hiring hall level. On the contrary,
the essential rationale in Zaich in our judgment supports the imple-
mentation of a union-security clause at the hiring hall level without
such an additional permissive clause, for, as was observed in Zaich,
it would be cumbersome and unnecessary to refer to a member com-
pany of an association or a multiemployer group an individual who
has already had his grace period, only to have the union immediately
request his discharge by the company, as it would be lawfully entitled
to do, for failure to pay his initiation fee. Thus, regardless of the
absence of specific contractual authorization, we find that the parties
to the instant contract could under the circumstances herein properly
implement their union-security agreement by a hiring practice which
requires the payment of the union initiation fee before referral of
an applicant who has already had his grace period. Moreover, as
the General Counsel conceded, Galina could have properly been dis-
charged had he in fact been referred. Consequently, there is no basis
in the record for finding that any of his rights under the Act have
been violated.
Accordingly, we find that the Union and Mayfair did not engage in
unlawful discriminatory conduct by insisting that Galina pay his
initiation fee before referral to Mayfair. We shall therefore dis-
miss the complaint.
[The Board dismissed the complaint.]
MEMBER LEEDOM, dissenting :
I think there is merit to the General Counsel's position, and I
therefore do not agree with my colleagues' dismissal of this complaint.
In the Zaich decision,' on which the majority relies, the Board held
that parties to an agreement which contains both lawful union-
security provisions and lawful hiring-hall provisions may further
lawfully agree to condition dispatch from the hiring hall upon good
standing in compliance with the union-security provisions. Here,
the majority is holding that because the Union could, if Galina were
81d, at 1048.
• The Trial Examiner , without pointing out any distinctions, agreed that Zaich was
"easily distinguishable" from the instant case.
5 Footnote 2, supra.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred, lawfully demand Galina's discharge thereafter and May-
fair could lawfully comply with that demand, and because it would be
"cumbersome and unnecessary" for the Union to refer Galina and then
demand his discharge, the Union could lawfully refuse to refer
Galina, even in the absence of an agreement giving it that right.
This conclusion, in my opinion, overlooks the necessary distinction be-
tween conduct which is sanctioned by agreement and conduct which
is not, and further overlooks the narrow nature of the issue decided
in Zaich.
Thus, it is lawful for a union to demand the discharge of an em-
ployee who fails to pay his dues and initiation fees, if the union has
an agreement with the employer giving it that right; yet, without such
an agreement, the identical demand would be unlawful. Similarly
here, the Union cannot refuse to dispatch because of failure to meet
certain union requirements in the absence of a lawful agreement giv-
ing it that right. It is one thing to say, as the Board concluded in
Zaich, that parties may by agreement give the union the right to
determine compliance with contractual union-security provisions,
which would bind the employer if the union makes an erroneous deter-
mination. It is quite another thing to say, as the majority say here,
that every employer who signs a hiring hall agreement containing a
union-security provision has, without more, made the union its agent
for the purpose of determining whether the union-security provision
lawfully permits termination of employment in a given situation and to
refuse a referral on that basis. In the absence of a lawful agreement
relinquishing that right, it is the employer's right to make that deter-
mination for himself. It is no justification to say it would be less
cumbersome if someone else could make the determination for him.
In Zaich, the Board decided only that an agreement which permits
dispatch to be conditioned on union consideration was lawful. The
question of implementation of a union-security provision at the hir-
ing hall level without an agreement, which is the issue here, was not
there in issue, and the Board did not decide that such an agreement
was not a necessary prerequisite to such implementation. To condi-
tion dispatch on union considerations, in the absence of an agreement,
is to me clearly unlawful.
For these reasons, therefore, I would find, as alleged by the General
Counsel, that because the contract here did not give it the right to
condition referral or clearance upon good standing, the Union
violated Section 8(b) (2) and (1) (A) in insisting on good standing
before it would clear Galina, and Mayfair violated Section 8(a) (3)
and (1) in acquiescing therein with full knowledge of the reason for
the Union's action.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
MAYFAIR COAT & SUIT CO. 1337
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding came on regularly to be heard by Trial Examiner David F. Doyle
at Los Angeles, California, on February 28, 1962, on complaint of the General
Counsel and the answer of Mayfair Coat & Suit Co., herein called the Company, and
the answer of International Ladies' Garment Workers' Union, AFL-CIO, Local 55,
herein called the Union.' The complaint in substance alleged that on June 13,
1961, (1) the Union refused to refer Galina, the Charging Party, from its hiring
hall to a job with the Company because of his lack of good standing in the Union,
and (2) the Company refused to employ Galina because he had not been referred to
it by the Union, and by this conduct the Union violated Section 8(b)(1) (A) and
8(b)(2) and the Company violated Section 8(a)(3) and (1) of the Act. The
answers of the Union and the Company denied the commission of any unfair labor
practices. At the hearing the parties were represented by counsel who were afforded
a full opportunity to present evidence, examine and cross-examine witnesses, and
to present oral arguments and briefs on the issues.
From my observation of the witnesses and upon the entire record of the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
A stipulation of the parties establishes that the Company at all times pertinent
hereto has been and is a partnership, consisting of Max Solursh and his son, Julius,
which engages at Los Angeles, California, in the manufacture, sale, and distribution of
ladies' apparel. During the 12-month period prior to the hearing, the Company
in the course and conduct of its business operations purchased goods and materials
originating outside the State of California valued in excess of $50,000. During the
same period, the Company shipped directly to customers located outside the State
of California, manufactured products valued in excess of $50,000.
I find that the Company is an employer engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
The same stipulation establishes that the Company is and has been at all times
pertinent hereto a member of the Los Angeles Coat and Suit Manufacturers' Asso-
ciation, which represents its employer-members in collective bargaining with various
labor organizations, including the Union, on a multiemployer basis. At all times
pertinent hereto, the Company through the Association has been a party to a collective-
bargaining agreement with the Union which became effective on January 21, 1960,
and terminated on May 31, 1962.
II. THE LABOR ORGANIZATION INVOLVED
The same stipulation establishes that the Union is a labor organization within
the meaning of Section 2(5) of the Act. It was also stipulated that Sam Siegel, here-
after mentioned, was and is a business agent for the Union.
III. THE UNFAIR LABOR PRACTICES
The parties also stipulated that Galina, the Charging Party, has been employed more
than 30 days as an operator in work covered by the above-mentioned labor agreement
by employers who are parties to the said collective-bargaining agreement.
The paragraphs of this agreement which .are involved in this proceeding read as
follows:
ARTICLE 7.-EMPLOYMENT BUREAU AND UNION SHOP
Section 1(A) : It shall be a condition of employment that all employees covered
by this Agreement who are members of the Union or of Local 994 in good
standing on the effective date of the extension of this Agreement shall remain
members in good standing and those who are not members on the effective
date of the extension of this Agreement shall, on the thirtieth day following the
effective date of the extension of this Agreement become and remain members
in good standing of the Union or of Local 994 (depending upon the craft of the
worker). It shall also be a condition of employment that all employees covered
by this Agreement and hired on or after .the date of the execution thereof shall,
i The charges herein were filed on June 16, 1961, and the consolidated complaint was
issued on December 20, 1961.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the thirtieth day following the beginning of such employment become and
remain members in good standing in the Union or Local 994, depending upon
the craft of the worker, i.e., shipping and receiving clerks, wrappers and packers,
drivers and utility workers shall be or become, as provided herein, members in
good standing of Local 994, all other workers covered by this Agreement shall
be or become, as provided herein, members of the Union.
Section 2(A): The parties recognize that because of the inherent nature of
the women's coat and suit industry, the great majority of its workers do not
have employment throughout the year. Part of the time they are totally un-
employed. There is also a constant turn-over of employers in the industry,
with old shops closing down and new ones opening up.
It is clearly desirable, both from the viewpoint of management and of labor,
that the whole trained work force of the Women's Coat and Suit Industry be kept
intact and not lost to other industries the periods of unemployment or when a
particular shop shuts down. The parties agree that this can best be accomplished
through some system based on the past employment which an individual has
had in the Women's Coat and Suit Industry in the metropolitan area of Los
Angeles. The parties further agree that the most fair and equitable method
of filling employment opportunities in such industry is through a multiple em-
ployer-employment pool from which members of the Association and other
employers in contractual relations with the Union can obtain employees.
Section 2(B) : The parties accordingly agree that in the light of the foregoing
considerations, the best method of effectuating the mutiple employer-employment
pool is through the Bureau hereinafter specified. Such Bureau shall, in the
following manner, establish and maintain a list of workers both Union and non-
Union, available for employment in each craft.
All employees, whether members of the Union or not in the bargaining unit
specified in Article 3, Section 2 hereof, in the following categories, shall be
deemed the regular working force in the Industry, and shall have prior call
on all job opportunities in the Industry.
Those on the payroll of, or attached to, the shops of members of the Asso-
ciation or of an employer in contractual relations with the Union on the date
of the execution of this Agreement; and those who, on the date of the execution
of this Agreement, were actively seeking employment in the industry; and those
who became part of the regular working force of the industry pursuant to
Article 7, Section 2(C) hereof.
When the employment of workers in the foregoing categories is severed, the
Employment Bureau shall register them in the sequence in which they became
unemployed and applied for registration with said Bureau.
Job applicants in the foregoing categories, who meet the job requirements
imposed by the system of production in the employing shop, and who possess
the particular skill and experience required by the particular job, shall be
offered job vacancies in the same sequence in which they become unemployed
and registered with the Employment Bureau.
Section 2(C): The Employment Bureau shall register for work all other
job applicants actively seeking employment, and job opportunities to such others
shall be available whenever there are no qualified workers in the regular work-
ing force of the Industry. Offers of employment to such other job applicants
shall be made in the sequence in which they registered for employment with
the Employment Bureau.
Any person who has worked for 40 consecutive full time working days for
one employer shall automatically be added to the regular working force of the
Industry.
The foregoing schedules, employment lists, job opportunities, registration
facilities for applicants for work and selection of applicants for referral to jobs
shall be on a non-discriminatory basis and shall not be based on, or in any
way affected by union membership, by-laws, rules, regulations, constitutional
provisions, or any other aspect or obligation of union membership policies, or
requirements.
Section 2(D): The Employment Bureau hereinabove referred to has been
established to effectuate the foregoing principles and to facilitate the employ-
ment of applicants for work in the Women's Coat and Suit Industry in Los
Angeles. Placements and replacements shall be made through such Bureau.
The Association agrees that every member thereof shall notify the Em-
ployment Bureau of every job vacancy in the crafts enumerated in Article 28
hereof as soon as the same shall occur in the shop of such member. When
MAYFAIR COAT & SUIT CO. 1339
such Bureau is requested to supply workers for any job vacancy, the Employer
making such request shall wait 24 hours after placing it before seeking to fill
the job outside of the Employment Bureau, thus affording the Employment Bu-
reau a reasonable opportunity to notify eligible and qualified workers of the
job vacancy and secure their presence at the plant of the prospective employer.
The Association agrees that such 24-hour waiting period is the minimum con-
sideration for the expense of maintaining such an expeditious method of pro-
viding a pool of skilled craftsmen.
The Employer retains the right to reject any job applicant referred by Em-
ployment Bureau.
Any non-Union workers employed by a member of the Association shall
comply with Article 7, Section 1(A) hereof.
Said Employment Bureau shall operate fairly and without discrimination for
or against any member of the Association and shall furnish qualified applicants
for each job opportunity. [Emphasis supplied in above provisions.]
The parties also stipulated that Alfred Galina has worked in the garment industry
as an employee-operator, foreman, and an employer since 1930, and in the Los
Angeles garment industry since 1939. Since July 1960 he has been employed by
various employers in the Los Angeles area. Such employers, at all times pertinent
hereto, have been members of the Los Angeles Coat and Suit Manufacturers' Asso-
ciation and/or parties to the collective-bargaining agreement set forth above.
The contractual situation set forth above and the stipulated background facts are
important items in the examination of the conduct of the Union and the Company,
which are claimed to be unfair labor practices.
A. The activities of Galina; Galina's conversation with Siegel;
the denial of employment to Galina
There is no substantial dispute as to the essential facts which give rise to this
proceeding, and the question which is presented for resolution is thus a question of
law rather than of fact.
It is undisputed that since 1939 Galina has been actively engaged in the garment
industry in Los Angeles. However, this case finds its source in the fact that Galina
has been at some times an employee, at other times a supervisor, and at other times
an employer himself. The evidence establishes that Galina is qualified to be a sew-
ing machine operator, or a foreman of such operators, or a professional designer.
It is this versatility which gives rise to this controversy. In the course of his cross-
examination Galina stated that he has worked in the garment industry since 1930.
He first joined the Union, near the end of the year 1941, when a shop in which he
was working as an employee was organized. At the time he paid an initiation fee
of $10, the normal fee for employees in a shop newly organized. Galina continued
in good standing in the Union until 1944, when he went into the army. He was
discharged from the Army in 1945 and again dropped out of membership when he
took a course in designing under the Veterans' Benefit Act. In May of 1949 Galina,
who was working for the Supreme Coat Company as an employee, again joined the
Union and paid a total initiation fee of $60. Galina made an original payment of
$15, and paid an additional payment of $45 within that year. In the course of his
examination Galina said that at that time he learned that it was the practice of the
Union, in accordance with its constitution, to have a committee assess the amount of
the initiation fee in accordance with the financial circumstances of the applicant.
Sometime thereafter Galina again dropped out of the Union, when he became a
supervisor.
On December 23, 1952, Galina again joined the Union and at this time his initia-
tion fee was set at $30, which he paid in two installments, one of $10 and another
of $20 Sometime thereafter Galina again dropped out of membership and again
rejoined the Union in 1955, when he was employed at a shop named Suncraft. On
this occasion his initiation fee was set at $50, but after paying two installments of
$10, he again dropped out of membership. Shortly thereafter Galina went to New
York and joined another local of the ILGWU at that city.
In 1957 he transferred his membership from the New York Local back to the
Union by means of a transfer procedure. The charge on his transfer was $2. On
May 25, 1959, Galina again became a supervisor, so he again ceased to pay dues
to the Union.
The Instant Controversy
In June of 1961, Galina again attempted to become a member of the Union. This
occasioned the present controversy. It is undisputed that on June 5, 1961, Galina
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to the Union's hiring hall and registered in the out-of-work book. On June 8,
Galina went back to the hiring hall and asked Mrs. Del Tiempo, the clerk in charge,
if any employer had called for him. She replied in the negative.
On June 13, Galina went to the office of the Company and there conferred with
both Julius and Max Solursh. They agreed to hire Galina as a sewing machine opera-
tor. Max Solursh gave Galina a card which he instructed Gahna to present to Sam
Siegel, the business agent of the Union, who serviced the union contract with the
Company. This card reads as follows: "Please give Alfred Galina a working card.
Max Solursh."
On June 14,2 Galina went to the office of the Union and met Business Agent Siegel.
Galina told Siegel that the business agent was supposed to give him a working card
for the Company, and Galina offered Solursh's card to Siegel. The business agent
waved the card aside and said that Solursh had just talked to him over the phone.
Then Siegel asked Galina if he was registered for work with the Union. Galina
replied in the affirmative and then the business agent said, "Let's see your union
book." Then Galina told Siegel that he had fallen out of the Union because he
had become a foreman . Siegel replied , "If this is the case, go down stairs and make
an initial down payment of $10 and come up with a receipt for $10 and then I
will give you a working card." Galina said, "I haven't got $10. I'm not working.
Where am I going to get money to pay to go to work?" At that point the two men
fell to arguing, and Galma said, "I think the law says you have to send me to work
first." After some more argument, Galena left the Union office and phoned Solursh.
Solursh instructed him to call back in a half hour, which would give Solursh time to
talk to Siegel. In a half hour, Galina called back to Solursh, who told him that
Siegel had told him that the reason he didn't give Galina a working card was because
Galina didn't want to comply with union regulations; and that as soon as Galina
complied with the union regulations , the working card was as good as in his
pocket
Around 2 that afternoon, Galina phoned Siegel. Siegel told Galina that he had
given Galina all the instruction that he was going to give him. Galina then called
Solursh again and on this occasion , Solursh told him that if Siegel , as business agent
of the Union, told him not to hire Galina, he couldn't hire him. In the course of his
examination, Galina testified that the $10 which Siegel demanded was the down-
payment on his initiation fee. Siegel also explained that later Galina would be
required to go before the committee which would decide what the total initiation
fee would be. Siegel explained that in no event could the initiation fee run as high
as $99.
On June 16, Galina again called the Company and asked if he could go to work.
Julius Solursh told him that it was up to Siegel, that he was the business agent for
the shop, and that without a working card, Solursh could not permit Galina to work.
Solursh said that the job was still available but that Galina would have to make it
right with Siegel before he could go to work.
It is undisputed that Galina did not pay the $10, and did not obtain clearance
from the Union or employment with the Company.
Concluding Findings
From the undisputed facts it is clear that Siegel, acting for the Union, conditioned
the dispatch of Galina from the hiring hall to an available job at the Company, upon
Galina paying a $10 part payment on his initiation fee to rejoin the Union. It is
likewise equally clear that the Company refused to employ Galina in an available
iob because he did not obtain referral from the Union. and that the Company had
full knowledge of the facts and circumstances of the Union's refusal
The General Counsel claims that under the circumstances here present, the Union
and the Company committed the unfair labor practices alleged in the complaint.
In this connection, it is noteworthy that the General Counsel does not attack the
legality of either the hiring-hall provision or the union-security provision of the con-
tract between the Union and the Los Angeles Coat and Suit Manufacturers Associa-
tion. It is his contention that the Union may not enforce the union-security provi-
sion by means of the hiring-hall procedure.
The Union and the Company defend their conduct on the ground that Galina
as an employee under the contract had enjoyed his 30-day grace period under the
contract, and that when he sought to rejoin the Union, the latter could lawfully re-
quire that Galina comply with its initiation procedures, even to the paying of the part
payment on his initiation fee of $10 prior to his dispatch from the hiring hall.
2 All dates in this section of this report are in 1961
MAYFAIR COAT & SUIT CO. 1341
I must state that I do not agree with the argument of the Union and the Company
for reasons which shall be stated hereafter, and I am not at all satisfied that the
General Counsel's position as to the legality of the umon-security provisions is valid.
Turning now to the facts of this case, it is clear that each time Galena rejoined
the Union, that organization treated him as a new member and required him to pay a
new initiation fee. Under those circumstances I cannot understand the Union's con-
tention that its contract permitted it to dispense with giving Galena a new grace pe-
riod of 30 days, on each rejoining and each new rehire.
The rights and duties of umons under the proviso to Section 8(a)(3) of the Act
have been the subject of settled law for many years. The proviso to Section 8 (a) (3)
permits an employer and a union to make a contract requiring membership in the
union, on and after the thirtieth day of the employee's employment, under certain
conditions.
The Supreme Court in Radio Officers Union v. N.L.R.B., 347 U.S. 17, 40-41,
defined in clear and unmistakable language the limits for union-employer action in
the field of union security. The Court wrote:
. The policy of the Act is to insulate employees' jobs from their organiza-
tional rights. Thus § 8(a) (3) and 8(b) (2) were designed to allow employees to
freely exercise their right to join unions, be good, bad, or indifferent members,
or abstain from joining any union without imperiling their livelihood. The only
limitation Congress has chosen to impose on this right is specified in the proviso
to § 8(a)(3) which authorizes employers to enter into certain union security
contracts, but prohibits discharge under such contracts if membership "was
not available to the employee on the same terms and conditions generally
applicable to other members" or if "membership was denied or terminated
for reasons other than the failure of the employee to tender periodic dues
and initiation fees uniformly required as a condition of acquiring or
retaining membership." Lengthy legislative debate preceded the 1947 amend-
ment to the Act which thus limited permissible employer discrimination. This
legislative history clearly indicates that Congress intended to prevent utiliza-
tion of union security agreements for any purpose other than to compel payment
of union dues and fees. Thus Congress recognized the validity of unions' con-
cern about "free riders," i.e , employees who receive the benefits of union
representation but are unwilling to contribute their share of financial support
to such union, and gave unions the power to contract to meet that problem
while withholding from unions the power to cause the discharge of employees
for any other reason. Thus an employer can discharge an employee for non-
membership in a union if the employer has entered a union security contract
valid under the Act with such union, and if the other requirements of the
proviso are met. No other discrimination aimed at encouraging employees to
join, retain membership, or stay in good standing in a union is condoned.
[Emphasis supplied.]
In the light of this language I cannot understand how the contract provisions
set forth above could deprive Galina of the benefit of the 30-day grace period
set forth in the proviso. And indeed, if the contract provisions can be construed
to deny an employee the benefit of the 30-day grace period, then the contract itself
must constitute a violation of the employee's rights under Section 7 of the Act.
It is this feature of the General Counsel's argument that puzzles me, for he seems
to concede that this group of employers and this union may lawfully enter into a
contract, which in effect limits this employee, Galina, to the benefit of only one
30-day grace period in this industry during his lifetime. As the legislative history
of Section 8(a) (3) discloses and as the Supreme Court has interpreted the section
and its proviso, an employee has a 30-day grace period, in each new employment,
before he can be required to join the union which represents the employees of that
particular employer. Here, the Union and the Company claim that by virtue of
their contract, if Galina had one 30-day grace period, in one period of employment
some years ago, he was not entitled to another such grace period, when he sought
employment some years later by another employer-member of the Association. I
cannot agree that any group of employers and a union by their contract can so
divest employees of fundamental benefits under the Act. The effect of such an
interpretation of the instant union-security provisions, coupled to the hiring-hall
provisions, places closed-shop conditions in this industry, in this area, for an un-
restricted time. as to any employee who had previously enjoyed a 30-day grace period
afforded him during any employment by any employer-member of the Association.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While employers and unions may negotiate and contract on a multiemployer basis
for their mutual convenience and benefit, they cannot by their contract deprive em-
ployees of fundamental rights and benefits conferred by the Act.
While the question here presented is somewhat novel, it is not the first effort by
employers and unions to foist discrumnatory conditions of employment or dispatch
on employees. In Convair, a Division of General Dynamics Corporation, 111
NLRB 1055, the union-security provisions of the company-union contract required
an employee, separated from the bargaining unit at a time when he was a member
of the union, to resume paying membership dues immediately upon his reemployment
within the bargaining unit. On this point the Board wrote as follows:
Thus, an employee who quits his employment or is transferred from the bar-
gaining unit while a member of the Respondent Union must, as a condition of
reemployment in any capacity within the unit, resume paying union dues even
though he has resigned his union membership in the meantime, a period during
which he could not, as an employee outside the bargaining unit covered by the
contract, legally have been required by the contract to maintain his union
membership. We share the Trial Examiner's opinion that for purposes of this
case such an employee, upon the occasion of his reemployment, stands in the
same shoes as one being hired by the Respondent Company for the first time,
who has never been a member of the Respondent Union, and that the existence
of a contractual obligation upon an employee in that position to pay union dues
beginning with the commencement of his employment would be plainly violative
of the Act.
In an early case, Idarado Mining Company, 77 NLRB 392, the Board had the
same view of an employee's rights upon being reemployed, for it wrote as follows:
The contracting parties might have made provision for the present situation in
their agreement. But as we read the maintenance-of-membership clause, they did
not do so. The obligation under the contract to remain a member in good
standing of the contracting union rested on employees. When Miller severed
his employment relationship with the respondent, his obligation to remain a
member in good standing of the Mine Production Workers ended at the same
time. The obligation was not merely suspended, ready to be imposed at any
time in the future that Miller might be again employed by the respondent. On
his reemployment by the respondent, in a new position and as a new employee,
'approximately a year after he had voluntarily resigned from the respondent's
employ, Miller's status was like that of any other new employee; he was required
to remain a member in good standing of the Mine Production Workers only if
he voluntarily rejoined that organization after his reemployment. This he did
not do.
Also, in Kaiser Steel Corporation, 125 NLRB 1039, the company and the unions
had contracts containing union-security provisions, and an additional contract provi-
sion , that a rank-and-file employee in the contract unit who became a supervisor
might return to his job in the unit, without loss of seniority, if, while in the super-
visory status, he made payments to the unit's bargaining representative which were
equivalent to monthly union dues.
In regard to this provision the Board wrote:
Under the contractual provisions in issue, an employee who leaves his job for
a supervisory position must, as a condition of reemployment in the unit as
described above, pay the equivalent of monthly union dues to the unit's bargain-
ing agent while he occupies the supervisory position. It is beyond dispute,
however, that such a person is outside the bargaining unit covered by any
contract involved during the period he occupies a supervisory status and is
therefore under no legal obligation to make payments to any union as a condi-
tion of employment during that period And if he was free of any obligation
to pay union membership obligations while outside the contract unit, at a time
when there was no contractual obligation to maintain membership as a condition
of employment, we fail to see how he can be made to pay any membership
obligation accruing during that period as a condition of reemployment within
the bargaining unit. The contractual provisions before us provide for just
such discrimination in employment and therefore cannot be reconciled with the
Act.
Cases somewhat similar to the instant case have arisen in regard to the dispatch of
men who were delinquent in their dues . In International Association of Bridge,
MAYFAIR COAT & SUIT CO. 1343
Structural and Ornamental Ironworkers, Local 600 (Bay City Erection Company,
Inc.), 134 NLRB 301, the Board stated:
[W] e find, contrary to,the Trial Examiner, that requiring [the employees]
to settle dues, fees, and assessment delinquencies prior to the issuance of work
permits, on which their jobs were dependent, violated Section 8(b)(1)(A)
and (2) of the Act.
The Board then in a footnote cited the following language used by the Board in
International Longshoremen's and Warehousemen's Union No. 10, Independent
(Pacific Maritime Association), 121 NLRB 938, at page 940:
[A] hiring-hall agreement which gave the union the right to refuse job referral
to a union member delinquent in the payment of dues would be unlawful, and
a union operating a lawful hiring hall would violate Section 8(b)(2) if it re-
fused to dispatch a union member because of dues delinquency.
Applying the rationale of these cases to the instant facts, it seems clear that when
Galina applied for dispatch on June 14, he had to be considered a prospective new
employee. The Union by inference concedes that, because it demanded of Galina
that he pay, not back dues for the period he was outside the bargaining unit, but a
new initiation fee. In that frame of reference then, Galina was entitled to dispatch
on a nondiscriminatory basis, and entitled to a new 30-day grace period before he
could be required to pay his initiation fee and join the Union.
Because of the peculiar posture of this case, I will make no finding that the com-
bination of contract provisions set forth above are illegal, since the General Counsel
does not attack them singly or in combination, as designed to effect an illegal form
of union security, but I find that in the case of Galina's application on June 14, 1961,
for referral from the hiring hall to an available job at the plant of the Company, the
representatives of the Company and the Union had reached a tacit agreement or
understanding that Galina was not to be referred or employed until he attained good
standing in the Union. This agreement or understanding, whereby Galina was ex-
cluded from referral and employment, and the conduct of the Company and the
Union in carrying out their agreement or understanding constitute violations of
Section 8(b)(1)(A) and 8(b)(2) on the part of the Union, and of Section 8(a)(3)
and (I) on the part of the Company.
The motions of the Union and the Company for the dismissal of the complaint
are hereby denied.3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union and the Company set forth in section III, above, to
the extent that they have been found to constitute unfair labor practices, occurring
in connection with the operations of the Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce as defined in Section 2(6) and (7) of the Act.
V. THE REMEDY
Since it has been found that the Union and the Company have engaged in certain
unfair labor practices, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the Union and the Company jointly discriminated
with respect to the hire and tenure of employment of Alfred Galina because of his
lack of good standing in the Union, it will be recommended that the Company offer
to Alfred Galina immediate and full reinstatement to the position for which he ap-
plied at the Company's Los Angeles, California, plant, without prejudice to his
seniority or other rights and privileges, and that the Union immediately notify the
Company and Alfred Galina in writing that it has no objection to the employment
of the aforesaid employee. It will be recommended further that the Company and
the Union, jointly and severally, make whole Alfred Gahna for any loss of earnings
he may have suffered by reason of the discrimination against him, computed in ac-
cordance with the formula stated by the Board in F. W. Woolworth Company, 90
NLRB 289. It is further recommended that the Board award interest to Galina at
3 The Board's decisions in Building Material and Dump Truck Drivers Local Union No.
420 etc. (Matt J. Zaich Co ), 132 NLRB 1044, and in Peterson Construction Corp, et al.,
134 NLRB 1768, on which the Respondents rely are easily distinguishable from the
instant issue on the basic facts of the cases.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rate of 6 percent per annum on the backpay so computed . Interest shall also
be computed in accordance with the Woolworth formula on the amount due and
owing for each calendar period . IR will also be recommended that the Company
make available to the Board , upon request, payroll and other records to facilitate
checking the amount due the above -named employee.
On the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, Local 55 is a labor
organization within the :meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By causing the Company to discriminate against employees in violation of
Section 8(a) (3) of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8('b) (2) of the Act.
4. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act.
5. By -refusing to hire Alfred Galina until he had attained good standing in the
Union and clearance from the Union 's hiring hall, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Retail Clerks Union , Local No. 1404 , AFL-CIO and Jay Jacobs
Downtown , Inc. Case No. 19-CP-35. February 20, 1963
DECISION AND ORDER
On August 16, 1962, Trial Examiner Martin S. Bennett 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 recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown.]
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the Respondent's exceptions. We therefore
adopt the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
140 NLRB No. 127.