The Cliffs Dow Chemical Co.

National Labor Relations Board - Board Decisions

Dec 18, 1945

64 N.L.R.B. 1419 (N.L.R.B. 1945)

In the Matter of THE CLIFFS Dow CHEMICAL COMPANY and UNITED
STEELWORKERS OP AMERICA, C. I. O.
Case No . 18-C-1104.-Decided December 18, 1945
DECISION
AND
ORDER
On March 15, 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
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent
duly filed exceptions to the Intermediate Report and a supporting
brief. No request for oral argument before the Board at Washington,
D. C., was made by any of the parties, and none was held.
The Board has considered the rulings of 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 hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications:
1. The Trial Examiner found that on December 2, 1944, the re-
spondent discriminatorily discharged Pfafe, in violation of Section
8 (1) and (3) of the Act. The respondent concedes that it discharged
Pfaffie on that date, and that it did so because of Pfafe's explusion
from the A. F. L., but it argues that the discharge was not an unfair
labor practice because of an agreement then in effect with the A. F. L.,
requiring membership in that organization as a condition of em-
ployment. We find, however, as did the Trial Examiner, that the
agreement then in effect, namely, an oral extension of a prior written
membership-maintenance agreement, is not a defense to the discharge,
because the extension was made by the respondent with knowledge
that it would be used by the A. F. L. for the purpose of securing
Pfaffie's discharge because of his prior union activity. Thus, the
A. F. L. had advised the respondent on September 14, 1944, that it
had expelled Pfaffie for dual unionism, which the respondent learned
64 N. L. R. B., No. 235.
1419
1420 DECISIONS 01" NATIONAL LABOR RELATIONS BOARD
consisted of active solicitation after Labor Day, 1944, on behalf of
it rival labor organization, the C. I. 0.; and it demanded his dis-
charge pursuant to the agreement in effect at the time. However,
the respondent refused to make the discharge, on the ground that
under the Rutland Court doctrine' the discharge would be dis-
criminatory; but the respondent further told the A. F. L. that it
would "reconsider the case" if the A. F. L. were to win a Board
election. Thereafter, the respondent orally extended the term of
the agreement,' and discharged Pfaffle pursuant to its promise to
reconsider the demand for his discharge. As we held in the Wallace
case, 3 an agreement is not valid within the meaning of the proviso
of Section 8 (3) so as to serve as a defense to the discharge of an
employee thereunder, when made by an employer with knowledge
that it will be used by the contracting union as a device for depriv-
ing such employee of his employment because of his prior union
activity.'
The respondent purports to distinguish the Wallace case, on the
ground that the agreement there was with a company-dominated
and assisted labor organization. We do not agree with the respond-
ent's interpretation in this respect. Thus, the Supreme Court clearly
stated in its opinion that the proviso is not to be construed as au-
thorizing a "majority of workers and a company ... to penalize
minority groups of workers by depriving them of that full freedom
of association and self-organization which it was the prime purpose
of the Act to protect for all workers."' The respondent further pur-
ports to distinguish the Wallace case, on the ground that the company
there "conspired with the contracting union by making a contract
under the terms of which C. I. 0. employees would be denied member-
ship in the contracting union and were discharged from employment-."
As the Supreme Court stated, however.
Neither the Board nor the court below found that the company
engaged in a conspiracy to bring about the discharge . . . [but
found only that the] contract was signed with knowledge on the
Matter of Rutland Court Owners. Inc , 44 N L R 11 587, 4G N L R B 1040
2 The testimony with respect to the of al extension i cads as follows
Q. [Bv the Board's attorney ] Did you make an} agreement with the A F of L.
after October 26, 1944 fthe normal terminal date of the agreement which was in effect
in September 1944], with reference to the continuation of this contract, or did you
rely simply on the printed piovisions°
A [By R All Jenner the respondent's general manager ] No the AFL bargaining
committee requested a meeting at various intervals so that we veibally agreed to
extend the contract ioi that period It was an actual verbal agreement at a meeting
which extended the contract
' Matter of Wallace Corporation, 50 N L R B. 138, enf'd 141 F (2d) 87 (C C A 4),
aff'd 323 U S 248
4 We therefore find it unnecessary to pats on the other grounds advanced by the Trial
Examiner for reaching his conclusion that the respondent violated the Act in discharging
Ptaflle.
5323U S,at256.
THE CLIFFS DOW CHEMICAL COMPANY 1421
part of the Company that Independent proposed to refuse to admit
them [the employees who had assisted the rival labor organization]
to membership.6
Lastly, the respondent purports to distinguish the Wallace case on the
ground that the vice of the discharges there was that they would "affect
the results of a pending election." However, no election was pending
in that case at the time of the discharges, and the case thus does not
support the respondent's interpretation.
Accordingly, we find, as did the Trial Examiner, that by discharging
Pfaffle, the respondent violated Section 8 (1) and (3) of the Act.
2. In cases where an employer has unlawfully discriminated against
,-n employee by discharging him, in addition to affirmative relief we
normally order the employer to cease and desist from in any other
manner infringing upon the rights guaranteed in Section 7 of the
Act. However, in the instant case the respondent discharged Pfaflle
because it believed that the terms of its agreement with the A. F. L.
required that the respondent accede to the A. F. L.'s demand for his
discharge. Under such circumstances and in view of the absence of
any evidence that danger of other unfair labor practices is to be antici-
pated from the respondent's conduct in the past, we shall not enjoin
the respondent from the commission of any other unfair labor practice.'
Nevertheless, in order to effectuate the purposes of the Act, we shall
order the respondent to cease and desist from the unfair labor practice
sound and from any like or related act or conduct interfering with
the exercise of the rights guaranteed in Section 7 of the Act. In addi-
tion, like the Trial Examiner, we shall order the respondent to offer
Pfaffle reinstatement with back pay in order to effectuate the policies
of the Act. Nothing in our Order hereinafter set forth shall be taken
to proscribe conduct of the respondent protected by the proviso of See-
tion 8 (3) of the Act.
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, The Cliffs Dow Chemical
Company, Marquette, Michigan, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
C. I. 0., or any other labor organization of its employees, by discharg-
ing any of its employees or by discriminating in any other manner
with respect to their hire or tenure of employment or any term or con-
dition of their employment;
6 323 U S., at 252-3
7 See N. L. R. B. V . Bxpres8 Publ18hing Company, 312 U. S. 426.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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, C. I .0., 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 bargain-
ing 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 Michael G. PfafRe immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges;
(b) Make whole Michael G. Pfafe for any loss of pay he has 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 the date of his discharge
to the date of the respondent's offer of reinstatement, less his net earn-
ings during such period;
(c) Post at its plant at Marquette, Michigan, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Eighteenth 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 ;
(d) Notify the Regional Director for the Eighteenth Region (Minne-
apolis, Minnesota) in writing, within ten (10) days from the date of
this Order, what steps the respondent 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
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelwork-
ers of America, C. I. 0., 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 and tenure of employment or any term or condition of
THE CLIFFS DOW CHEMICAL COMPANY 1423
their employment, except insofar as such conduct is protected by
the proviso of Section 8 (3) of the Act.
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 organi-
zations, to join or assist United Steelworkers of America, C. I. 0.,
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 the employee named below immediate
and full reinstatement to his former or a substantially equivalent
position without prejudice 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.
Michael G. Pfaffle
THE CLIFFS Dow CHEMICAL COMPANY,
Einployer.
By ----------------------------------------
Dated ---------------- --
(Representative) (Title)
No'rE.-The above-named employee, if presently serving in the armed forces of
the United States, will be offered full reinstatement upon application' in accordance
with the Selective Service Act after discharge from the armed forces.
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. Stephen 3f. Reynolds, for the Board.
Mr. Francis A. Bell, of Ishpeming, Mich, and Mr. Bcrnard H. Davidson, of
Negaunee, Mich., for the Respondent.
Mr. Jack Powell, of Negaunee, Mich., for the C. I. O.
STATEMENT OF THE CAGE
Upon an amended charge, filed February 3, 1945, by United Steelworkers of
America, C . I. 0., herein called the C. I. 0., the National Labor Relations Board,
herein called the Board , by its Regional Director for the Eighteenth Region (Min-
neapolis , Minnesota ), issued its complaint dated February 5. 1945, against The
Cliffs Dow Chemical Company, 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 together with the notice of hearing thereon were duly served
upon the respondent and the C 1 O.
1424 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent on or about December 2. 1944, discharged Michael G. Pfaffle
and thereafter refused and failed to employ him because he joined and assisted
the C I. 0., and that the respondent by such conduct engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act.
The respondent thereafter filed its answer wherein it admitted that it dis-
charged Pfaffle on the date mentioned in the complaint but denied that it did so
because of his C. I. 0 membership and activities and that it committed any unfair
labor practices in connection with the discharge. In its answer the respondent
alleged affirmatively that Pfaffie was discharged because of certain mandatory
provisions contained in a contract between the respondent and the Chemical
Workers Union No. 21876, A F L, herein called the A. F. L, requiring as a con-
dition of employment that all members of the A F L should remain members of
the A F. L in good standing for the duration of the contract.
Pursuant to notice, a hearing was held on February 22, 1945, at Marquette,
Michigan, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by counsel
and the C. I 0 by a lay representative. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. At the close of the Board's case the undersigned granted
the Board's motion, made without objection, to conform the pleadings to the
proof as to dates and minor variations. At the close of the hearing, counsel for
the Board and the respondent argued orally before the undersigned,-and counsel
for the respondent subsequently filed a brief with him
Upon the record thus made and from his observation of the witnesses. the under-
signed makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, The Cliffs Dow Chemical Company, is a Michigan corporation,
having its principal office and place of business in the City of Marquette, Michigan,
where it is engaged in the manufacture of industrial chemicals All of its raw
materials, consisting principally of cull 'hardwood, are purchased locally Of its
manufactured products, having a sales volume in excess of $2,000,000 annually,
approximately 75 percent is shipped to customers located outside the State of
Michigan
The respondent admits that it is engaged in commerce within the meaning of
the Act
II. THE ORGANIZATIONS INVOL\Ei)
United Steelworkers of America, affiliated with the Congress of Industrial Or-
ganizations, and International Chemical Workers Union, Local No. 179, of Bated
with the American Federation of Labor,' are labor organizations admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
1. Introduction
There is no substantial dispute as to the facts in this case, but there is sharp
conflict as to the conclusions to be drawn from them. The sole issue involved is
I Prior to January, 1945 , Local 179 was known as Chemical Workers Local 21876, A F. L.
THE CLIFFS DOW CHEMICAL COMPANY 1425
the legality of the respondent's action, taken following the A., F. L.'s victory in a
consent election, in discharging at the insistence of the A. F. L., and purportedly
pursuant to the provisions of an extended maintenance of membership contract,
Michael G. Pfaffle, an employee who, prior to the election, had engaged in activities
on behalf of the C. I. O. and had been expelled from the A. F. L. for dual unionism.
2. The March 1943 contract
The respondent and the A. F L. have enjoyed contractual relations for a num-
ber of years. Their last contract (prior to their current one which was executed
after the discharge of Pfalii'e) was dated March 22, 1943, and was for a term
ending October 26, 1944. The contract contained an automatic renewal clause
providing that it should be renewed from year to year unless either party filed
notice 30 days before the anniversary date of a desire "to change, alter, supplement
or cancel this agreement." With respect to its duration, the contract also con-
tained the following clause (Article XIV, Section E) :
In the event negotiations are in progress leading to amendments of this
agreement, or to a new agreement, the terms of this agreement shall continue
in full force and effect for thirty days beyond the anniversary date or such
further time as may be mutually agreed upon.
The March 1943 contract contained an article relating to the maintenance of
membership in the A. F. L, the pertinent provisions of which are quoted below :
ARTICI E II
MEMBERSHIP IN THE UNION
A. All employees who on the date of this agreement are members of the
Union in accordance with the constitution and by-laws of the Union and the
American Federation of Labor, and all employees who thereafter become mem-
bers, shall, as a condition of employment, subject to the limitations set forth
below, remain members of the Union in good standing for the duration of this
contract.
C. The Company is not required by the terms of this contract to dl, c'ii g^
any employee for failing to be a Union member in good standing if the
Union refuses to grant membership to such employee
D. Any question arising over Union iembership shall be presented in
writing by the Union to both the employee and the Company after which
it becomes subject to the regular grievance procedure.
Pfatlle's pre-election C I 0 activities, his expulsion from the A F. L , and the
demand made upon the respondent for his discharge
In the summer of 1944, the C I 0 began organization of the employees at the
respondent's plant. Pfaf le, who had been employed by the respondent for over
4 years and was a member of the A F L when the March 1943 contract was
executed, became interested in the C I O. shortly after Labor Day, and there-
after assumed a leading role in the C. I 0 organizational campaign. He cam-
paigned actively on behalf of the C I 0 , obtained numerous signatures to C I 0
application cards, and was elected president of the C I O. local organization in
the plant His unconcealed activities on behalf of the C. I 0 admittedly came
to the notice of the respondent prior to his expulsion from the A. F L.
By September 11, 1944, the C I 0 in its of ganizational campaign had succeeded
to a point where it was prepared to test its strength in an election. On that day,
the C I 0 claiming a majority in the bargaining unit, demanded bargaining
670417-46-vol: 64-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and served notice on the respondent not to enter into a further contract
with the A. F. L pending the outcome of a Board conducted election.
The next day, September 12, 1944, the A. F. L notified Pfaflle that he had
been charged with "dual unionism" and called upon him to appear at an A F. L.
meeting the following evening to make answer to the charges preferred against
him, or, on failure to appear, to face expulsion from the A. F L. 2 Pfafo failed
to appear.
On September 14, 1044, Bernard J. Stenglein, secretary of the A. F. L, trans-
mitted to the respondent the following letter :
Air. R. W. JENNER,
General Manager,
Cliffs Dow Chemical Co,
Marquette, Michigan.
DEAR MR. JENNER: At our last regular Union meeting, which was held
Wednesday, September 13, 1944, Mr Michael Pfaffle was expelled from
the Chemical Workers Union ; the charge was "Dual Unionism".
We, the Union, therefore request the Management of the Cliffs Dow
Chemical Company to enforce Article 2, Section A of our present Contract.
Yours very truly,
(S) BERNARD J. STENGLEIN.
To this letter the respondent replied on September 18, 1944, as follows :
Mr. BERNARD J. STENCLEIN, Secretary,
Chemical Workers Federal Local 21876,
11,25 Birch Avenue,
Marquette, Michigan.
DEAR SIR: We acknowledge receipt of your letter of September 14, in which
the Union iequests that Michael Pfaffle be discharged under Article II, Sec.
A of Union contract because be is no longer a member in good standing.
Will you kindly inform us in writing of all the facts in this case? Please
quote from your Union Constitution and By-laws the sections which permit
you to take the action leading to expulsion of Pfaffle from your Union:
From our present limited knowledge of this case we believe that there
is possibility of alleged discrimination because of Union activities even
though a discharge may be in accord with the intent of the present Union
Contract. You will therefore understand that the Company must exercise
caution in a case of this kind Please note Article II, Section C.
Yours very truly,
CLIFFS Dow CHEMICAL COMPANY
In the discussions which ensued , the respondent was informed that Pfafle's
"dual unionism" in violation of the A. F L constitution and by-laws , grew out
of his active solicitation on behalf of a rival union . The respondent consulted
2 Other than "dual unionism", Pfaffle was not charged with violation of any of the pro-
visions of the A F. L constitution and by-laws At that time, Pfaffle had been delinquent
in the payment of dues since July 1944 However, according to Pfaffle's undisputed testi-
mony, default in dues payment of less than 3 months duration did not affect the good
standing of a member under the A. F. L. constitution and was not cause for expulsion.
Pfaflle's grace period did not expire until October 1, 1944 ; no claim is made that Pfaffle
lost his good standing with the union because .of dues delinquency ; and the respondent at
the hearing conceded that it had no knowledge that Pfaffle was in default in dues payments
and never made inquiry concerning it. Under the circumstances, it is found that Pfaffle's
dues delinquency is an irrelevant factor in any consideration of the issues of this case.
THE CLIFFS DOW CHEMICAL COMPANY 1427
counsel and arrived at the conclusion that to discharge Pfaffle at that time might
subject it to charges of interfering with the pending election. Thereupon, under
date of September 20, 1944, it wrote further to the A. F. L. as follows :
Mr. BERNARD J. STENGLEIN, SeCretaiy,
Federal Local Union. 21876, A. F. L,
1425 Birch Aven tie,
Banquette, Michigan.
DrAR SIR: This is with further reference to your letter of September 14
requesting discharge of Michael Pfaffle because he is no longer a member
of your union in good standing.
We have carefully considered all the aspects of this case and have obtained
competent legal opinion on the facts involved. We find that we cannot
discharge Michael Pfaffle because such action is illegal under the National
Labor Relations Act and N. L. R. B. interpretations and orders thereunder.
On September 11, 1944 we were notified that the United Steelworkers
C I. O. claimed a majority representation of our employees and were filing
it petition for N. L. R. B. election. On September 12 you notified Pfaffle to
appear for a hearing on Dual Unionism. On September 14 you notified the
Company of his expulsion from your union and requested his discharge. It
is therefore evident that we had notice of pending N. L R. B. election before
the question of this discharge was raised.
Any such discharge would be ruled by N. L R. B. to be discrimination on
the part of the Company with a view to influencing the pending election.
In the event your organization won the election you would probably be ruled
a favored union and the election would be declared void.
We refer you to the Rutland Court Owners, Inc. 44 N. L. R. B., No. 112, Case
No. C-1639 and to our contract Article II, Section C. On September 18,
Mr. II. J. Paar telephoned to inquire what action we proposed to take and
we attach copy of our telegram to him.
Yours very truly,
CLIFFS Dow CHEMICAL COMPANY.
At the same time the respondent made it clear that it was willing to reconsider
its stand in the event the A F L. won the pending election, as more fully appears
from the following telegram dispatched by the respondent on September 20, 1944,
to A F. L national representative H. J Paar:
THIS COMPANY WAS NOTIFIED OF PENDING NLRB ELECTION BE-
FORE ACTION WAS TAKEN BY AFL ON DUAL UNIONISM CASE_
AFTER CAREFUL INVESTIGATION WE HAVE DETERMINED THAT
WE CANNOT COMPLY WITH YOUR REQUEST FOR DISCHARGE BE-
CAUSE IT WILL BE RULED AS DISCRIMINATION CALCULATED TO
INFLUENCE THE PENDING ELECTION. WE REFER YOU TO RUT-
LAND COURT OWNERS INC, 44 NLRB, NO. 112, CASE NO. C-1639 AND
TO OUR CONTRACT ARTICLE 2, SECTION C. IF YOUR ORGANIZA-
TION WINS PENDING ELECTION WE WILL RECONSIDER THE CASE
IF YOU SO DESIRE. I WILL BE ABSENT FROM MARQUETTE UNTIL
SEPTEMBER 25.
THE CLIFFS DOW CHEMICAL CO.
R. W. JENNER.
There the matter rested until after the election, although the A F. L persisted
at all times in demanding that Pfaffle be discharged.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The consent election ; the agreement to extend the March 1943 contract
On September 27, 1944, the C. I. 0 filed a representation petition pursuant to
Section 9 (c) of the Act, and, on October 10, 1944, the C. I. 0., the A. F. L., and
the respondent entered into a consent election agreement. At the election held
on October 26, 1944, 127 votes were cast for the A F. L., 87 votes were cast for the
C. I. 0., and 1 vote for neither organization. On November 22, 1944, the Regional
Director for the 18th Region certified the A. F. L as the exclusive bargaining agent
'of employees in the unit defined in the consent election agreement.
In the meantime, the A. F. L., in conformity with the renewal provisions of the
lMarch 1943 contract, had served upon the respondent the required 30 days notice
of its desire to change and supplement the contract, thereby precluding the opera-
tion of its automatic renewal provisions. It was orally agreed that negotiations
relating to the new contract be deferred until after the election. Negotiations
leading to the execution of the new contract on January 18, 1945, were in fact not
commenced until after Pfaffle's discharge on December 2, 1944. During the
interim period, the parties to the contract proceeded on the understanding that the
March 1943 contract was extended beyond its October 26, 1944 termination date, for
30 days by virtue of the provision of Article XIV, Section E, noted above, and
thereafter by virtue of a voluntary oral agreement made before the expiration
of that 30 day period to continue the old agreement in full force and effect until
a new one was agreed upon. The oral understanding to extend the March 1943
agreement was made prior to the discharge of Pfaftie and admittedly with knowl-
edge on the part of the respondent of A. F. L. continued insistence that Pfaifze be
discharged by reason of his expulsion from membership for dual unionism.
5. The discharge of Pfaffle
Under date of November 29, 1944 the A. F L. again wrote the respondent as
follows :
Mr. R. W. JENNER,
General Manager,
Cliffs Dow Chemical Co.,
Marquette, Michigan.
DEAR MR. JENNER: At our regular Union meeting held September 13, 1944
Mr. Mike Pfaffle was expelled from our Union on charges of Dual Unionism.
He was served notice of such charge and given an opportunity to prepare and
make a defense if he so desired, this in accordance with our Constitution and
By-laws as well as by the Constitution of the International Council of Chemi-
cal and Allied Industries Unions.
Evidently he did not care to deny or protest the charges for he made no such
effort.
On September 14, 1944 a letter was sent to the Management of the Cliffs
Dow Chemical Company requesting the enforcement of Article II, Section A
of our Contract, since Mr. Pfaffle was no longer a member of our Union.
However the C I. 0 organization, of which Mr. Pfaffle was president, had
filed an appeal with the N. L. It. B. for an election therefore the enforcement of
the above named article had to be deferred until a later date The postpone-
ment was mutually agreed upon by both the Union and the Management since
there was no desire on the part of either party to intimidate or coerce the
employees with the intent of influencing the pending election
THE CLIFFS DOW CHEMICAL COMPANY 1429
Now that the election is over and the Chemical Workers Union has been
certified as the exclusive bargaining agent we again request the Management
to enforce Article II Section A of our Contract in the case of Mr. Mike Pfaffle.
Yours very truly,
(S) Bernard J. Stenglein,
BERNARD 3' STuNGLIIN, Sec'y.
The above letter was filed with the respondent as a grievance by the A. F. L.
Grievance Committee. Pfaffle was not, however, called in at any stage of the
grievance procedure nor given an opportunity by the respondent to be heard.
Following the A. F. L. election victory, Pfaffle had not applied for readmission to
the A F. L., nor does it appear that he had ever been requested to do so. During
the negotiations on the Pfaffle case, the respondent, apparently considering the
question irrelevant, did not inquire whether after the election Pfaffle had requested
reinstatement as a member in good standing in the A. F. L. and did not in fact
learn that lie had not until some time after his discharge.
On December 2, 1944, Pfaffle was notified by the respondent that his employment
was being terminated that day at the request of the A. F. L. pursuant to Article II,
Section A, of its contract. He has not been reemployed since.
6. The contract of January 18, 1945
In the new contract entered into between the A. F. L. and the respondent on
January 18, 1945, the parties substituted in lieu of the maintenance of member-
ship provision a union shop provision providing that
eligible employees covered by this agreement, as a condition of employment,
shall within thirty (30) days of the date of signing this agreement become
members of the Union. New employees shall, if eligible, within thirty (30)
days after becoming permanent employees, as a condition of further employ-
ment, become members of the Union. It is further agreed that, as a condition
of employment, I11 eligible employees who are now or may hereafter become
members of the Union must remain members in good standing.
and further providing that
"Good standing" is defined as having paid, or offering to pay, regular union
dues. The Company is not required by the terms of this contract to discharge
any employee for failing to be a Union member in good standing if the Union
refuses to grant membership to such employee s
B. Concluding findings
The respondent defends its discharge of Pfaffle on the ground that its action was
obligatory under the mandatory provisions of its March 22, 1943, contract with
the A. F. L., and asserts that its contractual obligations viewed in conjunction with
The proviso in Section 8 (3) of the Act 4 makes it immune from legal responsibility.
9 The respondent 's general manager, R . W. Jenner, testified that "good standing" was
thus expressly defined in the January 1945 contract in order to avoid a repetition of the
Pfaffle situation.
4 The proviso is that nothing in the Act "shall preclude an employer from making an
agreement with a labor organization ( not established , maintained , or assisted by any action
defined in this Act as an unfair labor practice ) to require , as a condition of employment,
membership therein, if such labor organization is the representative of the employees as
provided in Section 9 (a), in the appropriate collective bargaining unit covered by such
agreement when made".
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, counsel for the Board contends that the proviso affords the
respondent no shield against accountability for a violation of Section 8 (3), since
the respondent submitted to the discharge demand of the A. F. L. with knowledge
that it was bottomed on Pfaffle's expulsion from A F. L membership for having
earlier, and while a question of representation was pending, exercised the rights
guaranteed by Section 7 of the Act.
The broad issue thus posed, requiring a resolution of a seeming conflict between
the Act's fundamental purpose to guarantee to employees the opportunity to select
representatives freely and the restrictions of the proviso in Section 8 (3), is not
a novel one. That same issue was presented to and elaborately considered by the
Board in the Rutland Court cases In that case the Board held that a valid closed-
shop contract did not protect an employer where the contracting union, shortly
before the expiration of the contract, persuaded the employer to discharge certain
employee members of the contracting union because they had indicated their inten-
tion to seek representation by another union. The Board there, after noting the
legislative history of the proviso, found that the proviso was "not a severable and
separate portion of the Act" but "must be construed in the light of the statutory
statement of policy and the general provisions of the Act, and if any seeming con-
flicts arise they should be resolved so as to give proper effect to the salient pro-
visions of the Act." The Board pointed out that the "expressed purpose of the
Act is to insure employees of their own right of self-organization and a free choice
of representatives" and that, to be meaningful, the right of employees to select
representatives must necessarily include the right "at some appropriate time,"
such as where a contract was about to expire, to change representatives. The
Board reasoned that the purpose of the Act would be defeated if the proviso were
"considered an instrument for depriving employees of their statutory right to
select another representative for a period succeeding the term embraced by the
closed-shop contract," and concluded that to uphold under the proviso the dis-
charge of employees whose representation was in issue would be "clearly incon-
sistent with the whole policy and general scheme of the Act." 1
In this case, Pfaflie's activities which led to his expulsion from the A. F L. and,
in turn, to his discharge by the respondent were performed in furtherance of his
right to self-organization His activities were directed to the selection of a new
bargaining agent to succeed the existing bargaining agent at the end of the then
current contract term. His activities were engaged in at an "appropriate time,"
near the end of the then current contract term when, under the principles of the
Rutland Court case, accommodation to the fundamental purposes of the Act
required the restrictions sanctioned by the proviso to give way to the more basic
right of employees to change representatives.
It is clear that, had Pfaffle been discharged when the A. F. L. originally made
its demand, prior to the election, the discharge would have been discriminatory.
The respondent does not challenge this proposition nor does it challenge the prin-
ciples of the Rutland Court decision upon which this proposition is based ; indeed,
as appears from its correspondence with the A F. L. and as it took pains to em-
phasize at the hearing, it was precisely because of the principles laid down in the
Rutland Court case that it refrained from submitting to the A. F. L demand prior
to the election. The respondent argues, however, that when the results of the
election resolved the question of representation and re-established the A. F. L.
as majority representative, the Rutland Court principle ceased to be applicable
and the obligation of the maintenance of membership provision (which, according-
5 Matter of Rutland Court Owners, Inc ., 44 N. L. R. B. 587 ; 46 N. L . R. B. 1040. The
analysis herein made of this case is based on the Board's original and supplemental decisions
considered as a unit.
THE CLIFFS DOW CHEMICAL COMPANY 1431
to the respondent's view, had been only temporarily suspended during the pendency
of the question of representation) again became an absolute one, requiring the
respondent to accede to the A F L demand
The argument of the respondent misconceives the principles involved as ap-
plicable to the facts of this case. Here, the question is not whether the mainte-
nance of membership provision was generally enforceable after the election cer-
tification, but whether the respondent could at any time and with legal impunity
effect the discharge when it knew that the membership expulsion and consequent
discharge demand were predicated entirely and solely upon self-organizational
activities which, in light of the period in which they were performed, must per-
force be regarded as protected notwithstanding any contractual limitations or the
proviso in Section 8 (3). As appears from its letters written to the A. F. L.
before the election, the respondent recognized that a discharge at that time would
have an intimidatory and repressive effect on its employees in their selection of
representatives and would improperly influence the pending election. But it is
obvious that the impediment to self-organizational activities would be almost
equally as serious if the employees knew that, while they were immune from dis-
charge during the pre-election period, the protection thus afforded them was but
temporary and subject to withdrawal should the election results prove that they
had chosen the losing union. If the protection granted to employees-in their right
to change representatives under the principle of the Rutland Court case is not
to be negated, it cannot be made conditional upon the employees' correctly specu-
lating on which union will win. Where, as here, the activities themselves are
protected, it is immaterial that the penalty is postponed until a time when similar
activities might no longer be protected.
Support for the views expressed above is found indicated in the recent Wallace
Corporation case,' where the Supreme Court upheld a Board order holding,
inter alia, that the Company's execution of a closed-shop agreement with a
union, with knowledge that it was to be used to effect the discharge of em-
ployees who prior to a recently conducted election had demonstrated their ad-
herence to a rival union, was illegal and that discharges under that contract
violated Section 8 (3) of the Act. The following language from the majority
,decision of Mr. Justice Black is pertinent :
No employee can be deprived of his employment because of his prior af-
filiation with any particular union . . . We do not construe the provision
authorizing a closed shop as indicating an intention on the part of Congress
to authorize a majority of workers and a Company, as in the instant case,
to penalize minority groups of workers by depriving them of that full free-
dom of association and self-organization which it was the prime purpose
of the Act to protect for all workers.
The Wallace Corporation case suggests another reason which makes the re-
spondent's position in the instant case indefensible. As has been noted above,
the term of the March 1943 contract, pursuant to provisions of which the re-
spondent seeks to justify Pfaf3e's discharge, had already expired prior to the
discharge. It had then been extended, with all its provisions intact, although
the respondent was under no obligation at the time to agree to such an exten-
'ion. The extension was granted by the respondent in the face of the A. F. L.'s
continuing demand that Pfaffle be discharged by reason of his expulsion from
A. F. L. membership for dual unionism prior to the election, and with knowl-
edge that the extension of the maintenance of membership provision would,
e Wallace Corporation v. N. L. R. B., 323 U. S. 248, affirming 141 F. (2d) 87 (C. C A 3),
enforcing 50 N. L. R. B. 138.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinder its interpretation of the contract, and as a result of the A F L.'s demand,
require it. to deprive Pfaflie of employment because of his pre-election C I. O.
affiliation and activities. Having thus acted in concert with the A. F. L. to
create the mechanism which enabled the discharge, the respondent cannot now
evade liability by attributing sole responsibility to the A. F. L. for the action
taken.
What has been said above is not to be interpreted as meaning that an em-
ployer and a majority union may not require all employees in the bargaining
unit, including a minority group which prior to the determination of re-
presentatives supported a rival union, to join the union which, under Section
9 (a), has been duly designated to act as the representative of all employees.
Thus, in the instant case, the respondent might properly require Pfaffle, upon
reinstatement, to comply with the union-shop provisions of its current contract.
Rather, the conclusion which flows from the considerations outlined above is
that the employer and the majority union may not use a closed-shop or modified
union security contractual provision to remove employees of a minority group
because prior to the selection of the majority representative and during an
appropriate period for the designation of new representatives, they exercised
the rights guaranteed to them in the Act. Likewise, they may not discriminate
against those of the employees who have supported another union by denying
them an opportunity to continue their employee status by accepting the
majority choice and all its implications.
There remains for consideration, then, the question as to whether Pfaffie's
failure after the election to seek reinstatement as a member in good standing of
the A. F. L. operates to deprive him of his right to protection as indicated above.
On the facts of this case, the undersigned is persuaded that it does not Here,
we do not have to consider what Pfaffie's obligations would have been had the
respondent and the.A. F. L. prior to the discharge entered into a new contract
requiring his membership in the A. F L as a condition of employment. The
contracting parties at the time of the discharge were operating under an interim
extension of the maintenance of membership contract under which Pfaflle's dis-
charge had previously been demanded and properly refused True, under the
contract Pfaffle was one of the employees who was required to maintain his
A. F L membership. But his membership ties with that organization had been
severed prior to the election and prior to the extension agreement through no
failure on his part to adhere to the maintenance of membership provisions of the
contract to the extent that such restrictions carry legality under the Ru'tlaiid
Court principle. His loss of membership was attributable, as the respondent knew,
solely to the fact that he had exercised rights guaranteed to him, and protected,
under the Act. Under the circumstances his non-membership status under the
contract, induced by action in derogation of the policies of the Act, should not have
placed him in a less favorable position than a new employee, who, under the terms
of the old contract was not required, as a condition of employment, to maintain
membership in the A. F. L. Further, in view of the circumstances under which
Pfaffle had lost his membership and the fact that the A. F. L had never ceased
to press its demand for his discharge, it may clearly be inferred, and the under-
signed finds, that any application made by him for readmission to the A. F. L.
would have represented the performance of a futile act Beyond that, there' vas
no certainty at the time of the discharge that the new contract which the re-
spondent and the A. F. L were then about to negotiate would continue the
maintenance of membership restrictions. Indeed, as events proved, under the new
contract which was finally negotiated Pfaffle would have had 30 days within
''which to become a member of the A. F. L. and would have been immune from
THE CLIFFS DOW CHEMICAL COMPANY 1433
discharge had the A F L declined to grant hire membership. Under all the
circumstances, the undersigned concludes that Pfaffle was under no affirmative
burden between the time of his expulsion and the date of his discharge to seek
restoration of his A F. L membership in order to protect his employee status.
In any event, it is apparent from the record that, as the respondent knew, the
A F. L discharge demand to which the respondent bowed was bottomed exclusively
on Pfafe's pre-election expulsion for dual unionism, and was not predicated in
whole or in part upon Pfaftlc's failure after the election to seek reinstatement
in the A F. L As appears from its telegram of September 20, 1944, forwarded
to the A F. L national representative, the respondent prior to the election had in
effect invited the A. F L to renew its discharge demand after the election if the
A. F. L were victorious From its letter of November 29, 1944, immediately
preceding the discharge. it is clear that the A. F L at that time was merely
renewing its pre-election discharge demand, and upon the original grounds, in
accordance with it "postponement [which] was mutually agreed upon by both the
Union and the Management " The respondent conceded at the hearing that prior
to the discharge it did not inquire of the A. F. L. (and did not know) whether
Pfaffle after the election hod applied for reinstatement, and it is apparent that it
considered this factor irrelevant to its decision
The respondent's protestations of good faith in connection with Pfafile's
discharge are not free from question As has been rioted above, even before
the election it, in effect, invited the A. F L thereafter to renew its demand.
After the election, it felt no need to inquire whether Pfaffle had attempted to
reestablish himself in good standing with the A. F. L. It did not afford
Pfaffle an opportunity to appear and state his position during the grievance
proceedings which led to his dismissal. It abandoned the position taken by
it prior to the elect ion that Article 11, Section C, of its contract justified it
in refusing to discharge Pfaffle. It made no effort to negotiate for the re-
tention of Pfaffle although it was then about to negotiate a new contract which,
as finally consummated, would have afforded Pfaffle 30 clays to apply for
membership and would have prevented ;ails discharge if the A. F. L. refused
to accept him It voluntarily entered into an extension agreement which it
knew would be relied upon to cause Pfaffie's discharge.' However, even if
the respondent's good faith were assumed, it would not alter the fact that
its conduct was illegal As the Circuit Court of Appeals for the Sixth Circuit
has held, "where it is once made to appear from the primary facts that the
employer has violated the express provisions of the Act, we may not inquire
into his motives" even where it is shown that the employer "has not wilfully
violated" the Act. N. L. R. B v. Hudson Motor Car Company, 128 F. (2d) 528,
532, 533 (C. C A. 6).
Under the circumstances herein found, and upon one record as a whole, the
undersigned is convinced that the respondent was not required on notice and
demand of the A. F L. to discharge Pfaflle under the terms of the March 1943
contract because he was no longer a member of the contracting union, but on
the contrary, that having notice of the illegal purpose behind the demand the
respondent was obliged as a matter of law to refuse to comply with the demand.
Having effected the discharge, it must be held accountable for the dis-
' Cf Wallace Corporation v N. L. R. B., supra , where the Court, answering an argument
of the Company that the closed -shop contract in that case was entered into because the
Company was legally obliged to bargain with the majority union and that the Company
did all in its power to prevent the discharges and should not be held responsible for them
said: ". . the Company was not compelled by law to enter into a contract under which
it knew that discriminatory discharges of its employees were bound to occur".
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory act. It is therefore found that by its discharge of Michael G.
Pfaffle on December 2, 1944, and failure thereafter to reinstate him, the
respondent discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the C I. 0., and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the opelations of the respondent described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that the respondent has engaged in an unfair labor
practice, it will be recommended that it cease and desist therefrom, and take
certain action necessary to effectuate the policies of the Act.
It has been found that on December 2, 1944, the respondent discriminatorily
discharged Michael G. Pfaffie. It will be recommended that the respondent offer
Michael G. Pfaffle immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights and
privileges, and that the respondent make Michael G. Pfaffle whole for any loss of
pay he may have suffered by reason of the discrimination against hiin, by pay-
ment to him of a sum of money equal to that which he normally would have
earned as wages from December 2, 1944, the date of his discriminatory discharge,
to the date of the offer of reinstatement, less his net earnings B 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 Lew
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, and International Chemical Workers Union, Local No. 179, affiliated
with the American Federation of Labor, are labor organizations within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Michael
G. Pfaffie, 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 said act the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
8 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and boatd , incurred by an employee in connection with obtaining work and working else-
where 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 and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L R. B. 440 . Monies
received for work performed upon Federal , State, 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.
THE CLIFFS DOW CHEMICAL COMPANY 1435
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, The Cliffs Dow Chemical Company,
Marquette, Michigan, its officers, agents 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 in
any other manner discriminating in regard to their hire or tenure of employment,
or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist United Steelworkers of America, affiliated with the Con-
gress 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Michael G. Pfaffie immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges ;
(b) Make whole Michael G. Pfaffle 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 that which he normally would have earned as wages from
the date of the respondent's discrimination against him to the date of the respond-
ent's offer of reinstatement, less his net earnings ° during such period ;
(c) Post at its plant at Marquette, Michigan, copies of the notice attached to
the Intermediate Report herein, marked "Appendix A " Copies of said notice to
be furnished by the Regional Director for the Eighteenth Region, shall, after being
duly signed by the respondent's representative, be posted by the respondent im-
mediately upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees 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) File with the Regional Director for the Eighteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it has complied with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date of
9 See footnote 8, supra.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D. C., an original and four copies of a statement in writ-
ing setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Boaid filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing within
ten (10) days from the date of the order transferring the case to the Board.
ARTHUR LEFF,
Trial Exaniinei
Dated March 15, 1945.
NLRB 577
(9-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to Recommendations of a Trial Examiner of the Nationil Labor
Relations Board, and in order to effectuate the policies Qf the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restiain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist United Steelworkers of America, C. I 0
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in conceited activities for the
purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions with-
out prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a result of
the discrimination.
Michael G. Pfaffle
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate in
regard to hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any
such labor organization.
THE CLIFFS Dow CHEMICAL COMPANY,
Employer.
Date-------------------- By -------------------------- --------------
(Representative) (Title)
Note.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.