1. The finding of the National Labor Relations Board that, by a
supplementary oral contract between an employer and a labor union,
it was agreed only that new employees would be required
Page 315 U. S. 686
to join the union was supported by substantial evidence P.
315 U. S.
690.
2. The conclusion of the Board that the closed shop agreement
between the employer and a labor union in this case was not valid
under § 8(3) of the National Labor Relations Act, because, prior to
such agreement, the union -- although then the collective
bargaining representative of a majority of the employees -- had
been assisted by cooperation of the employer, constituting unfair
labor practice, was supported by substantial evidence. P.
315 U. S.
694.
The evidence supports the Board's ruling that the employer,
contrary to a collective bargaining agreement, coerced old
employees to join certain unions with which the employer had no
closed shop contracts, in violation of the freedom of employees to
organize, guaranteed by the Labor Act.
3. An order of the Board requiring the employer in this case to
cease and desist from encouraging membership in such union and
discouraging membership in another; from giving effect to the
closed shop provision of the contract; from giving effect to the
remainder of the contract, when any other labor organization shall
be certified as exclusive bargaining representative; from
interfering with its employees' rights to self-organization, and
requiring reinstatement with back pay of certain employees, posting
of notices of compliance, and notification of the Board, was
supported by the evidence and the findings, and was valid and
enforceable. Pp.
315 U. S. 689,
315 U. S. 698.
4. A finding by the Board that a clause of a contract between an
employer and a labor union whereby new employees would be required
to join the union was abandoned and not subsequently revived
held supported by substantial evidence. P.
315 U. S.
696.
5. Shortening the period for which the Board ordered
compensation to be paid to employees wrongfully discharged or
refused employment is not justified by the delays in disposing of
this case. P.
315 U. S. 698.
120 F.2d 611 reversed.
Certiorari, 314 U.S. 600, to review a judgment refusing
enforcement of and setting aside an order of the National Labor
Relations Board.
Page 315 U. S. 687
MR. JUSTICE REED delivered the opinion of the Court.
The basic question for determination by this review is the right
of the respondent employer, the Electric Vacuum Cleaner Company,
Inc., to cooperate with unions, representing an uncoerced majority
of its employees, to secure new members. The right is challenged
because exercised prior to a closed shop agreement.
The other respondents are various unions, all affiliated with
the American Federation of Labor, which we shall call the
Affiliates. Since June 22, 1935, these unions have been recognized
by the employer as the duly chosen agents of the employees for
collective bargaining. On that date, the Affiliates and the
employer entered into a written contract covering hours and working
conditions for the period ending June 23, 1936. A similar contract
extended the arrangements to June 23, 1937. In making the latter
contract, the Affiliates satisfied the employer of their right to
represent the workers by exhibiting authorization cards totaling
771 out of the 809 employees affected. These cards gave the
Affiliates "full power and authority" to conclude for the signer
"all agreements as to hours of labor, wages, and other employment
conditions." They were to
"remain in full force and effect for one year from date and
thereafter, subject to thirty (30) days' written notice of my
desire to withdraw such power and authority to act for me in the
matters referred to herein."
We assume that the cancellation clause is ineffective prior to
twelve months from the date of the card, and that all cards were
dated just prior to the termination of the first, or 1935,
contract.
In March, 1937, when the contract and the individual powers of
attorney still had several months to run, the
Page 315 U. S. 688
United Electrical and Radio Workers of America (hereafter called
United) affiliated with the Committee for Industrial Organization,
began an effort to organize the plant. The Board, on adequate
evidence, found that about sixty employees immediately signed
United cards, that, on March 19th, a meeting of United was held at
the Post Office building in East Cleveland, attended by a "large
number of employees," and that, on March 28th, another United
meeting was held "by a large number of persons, for the purpose of
securing formal resignations from the A.F. of L. Affiliates." It is
undisputed that a United charter was issued to the interested
employees for a Local 720, and that, on April 2nd, the Local
notified the employer by letter that a majority of its employees
had resigned their memberships in the Affiliates and had
"affiliated" themselves with United. Local 720 claimed in the
letter the right to negotiate grievances "under the existing
contract,"
i.e., that expiring June 23, 1937. This letter
was not received by the employer until April 5th.
Prior to the receipt of this letter and during a shutdown of the
plant by the employer which had begun on Monday, March 22, 1937,
pursuant to a request of the Affiliates dated March 20th, the
employer and the Affiliates had entered into an oral arrangement on
Saturday, April 3rd, pursuant to which the employer notified its
employees it was reopening its plant Monday, April 5th, under the
contract expiring the subsequent June 23rd, and added "but only
those employees who are members of the crafts under contract with
us will be employed." Eventually a closed shop clause appeared in a
bilateral written contract, superseding the one expiring June 23rd,
executed as of May 20, 1937, in the following form:
Article III(d)
"The Employer agrees to employ only members of the Unions in
good standing in their respective Unions, and, should the Employer
require more employees
Page 315 U. S. 689
than those now employed, the Employer will secure such employees
through the Unions; if, however, the Unions are unable to furnish
such employees, the Employer may secure them elsewhere, it being
understood, however, that such employees so secured shall become
members of the Union."
On the reopening of the plant, no one was permitted to return to
work who did not present a clearance card from the Affiliates. The
refusal of the company to reemploy certain members of United Local
720 gave rise to charges of unfair labor practices, which were
sustained by the National Labor Relations Board. 18 N.L.R.B. 591.
The employer was ordered to cease and desist from discouraging
membership in United and encouraging membership in the Affiliates;
from giving any effect at any time to paragraph (d) of Article III
of the May 20, 1937, agreement, quoted above, requiring a closed
shop; from giving any effect to the remainder of the May 20, 1937,
agreement upon certification of any other labor organization than
the Affiliates as exclusive collective bargaining representative,
and from in any manner interfering with its employees' rights to
self-organization. The order required affirmative action by the
employer for certain employees to the extent of reinstatement and
back pay with the usual provisions for posting notices of
compliance and notification of the Board. Some other charges and a
petition for investigation and certification of bargaining
representatives were dismissed without prejudice. [
Footnote 1]
The respondents successfully contested an enforcement petition.
The Circuit Court of Appeals set aside the order, 120 F.2d 611, on
the ground that the refusal to permit
Page 315 U. S. 690
members of the United to resume their work was justified
because, at the time, a valid closed shop contract in favor of the
Affiliates under § 8(3) of the statute, set out below, was in
effect. [
Footnote 2] Deeming
the issues important in the administration of the Act, we granted
certiorari. 314 U.S. 600.
In addition to the facts just stated, the Board found there was
an oral provision pertaining to a closed shop included in the 1935
and 1936 contracts. This was to the effect, the Board concluded,
that all employees hired after the date of the first contract
(referred to as new employees) should be required, after a
work-probation period of two weeks, to become members of the
appropriate Affiliate union. Respondents contend the oral addition
was somewhat different, and that under it not only were new
employees compelled to join the Affiliates, but old employees
(those employed before the first contract) who were or who became
members of the Affiliates were required to maintain their
membership unimpaired. Respondents' position was upheld by the
Circuit Court of Appeals for this and other reasons. The freedom of
old employees, under the earlier contracts, to join or not, as they
wished, is acknowledged by all.
Page 315 U. S. 691
The Court relied heavily upon the authorizations to bargain
[
Footnote 3] furnished the
Affiliates by the old employees as indicating the old employees who
were members must maintain that status until the year was up.
Assuming that every old employee furnished a power of
representation for collective bargaining not revocable during the
year, it need not be inferred the employee also was bound thereby
not to switch his union allegiance. If the employee were forced to
await the expiration of the year before changing membership, the
first bargaining representative might have a contract for the
ensuing year executed before a new representative could be
organized and empowered to act. There is nothing in this record to
compel such interpretation of the authorizations. With respect to
the contract between the employer and the Affiliates, the Board
cites the evidence of several, including a letter from the
employer's president, written before any controversy arose, to the
effect that the oral provision was that new employees must join the
Affiliates. From this evidence, the Board was fully justified in
reaching its determination that nothing more was agreed.
Labor
Board v. Automotive Maintenance Mach. Co., 315 U.
S. 282;
Labor Board v. Falk Corp., 308 U.
S. 453,
308 U. S. 461;
Labor Board v. Greyhound Lines, 303 U.
S. 261,
303 U. S. 271.
There is a difference between being bound to retain the same
bargaining representative
Page 315 U. S. 692
for a specified period, and being bound not to become a member
of a different union during the term of the contract. The first
situation, not the second, arose from the earlier contracts.
The commencement of the United campaign for membership in March
brought cooperative action between the employer and the Affiliates
to strengthen the latter's position. Under the oral contract, as
defined by the ruling of the Board, now approved here, new
employees could properly be required to become members of the
Affiliates, but old employees could neither be required to become
members nor to maintain their membership. The Board found that, to
forestall defections of old employees from the Affiliates to the
United, the employer "summoned old employees to the office and
there sought to, and in many instances was able to, coerce them
into joining the A.F. of L. Affiliates." In the office were
representatives of the Affiliates as well as the employer. A number
of old men were called before this group. It is not clear from the
record which ones had been members of the Affiliates and lost their
standing, or which ones had never been members. There were
instances of each type. Vitosky had been a member. Ramsey had not.
Both Vitosky and Ramsey were old employees, each in service long
prior to the first contract. Vitosky and four others signed
affiliate cards on demand, and returned to work. Ramsey refused to
sign, and was discharged. Upon the report of Ramsey's discharge
reaching the workshops, there was a one day sit-down strike.
Respondents urge that Ramsey's discharge was the result of an
error. This issue need not be resolved, as there is evidence that
some old men, in violation of the collective bargaining agreement,
were required to maintain or renew their membership in the
Affiliates prior to the closed shop agreement of April 3rd. Such
facts are adequate to support the Board's ruling of coercion of
employees
Page 315 U. S. 693
by the employer in order to maintain the membership of the
Affiliates. Without a closed shop contract covering the employees
involved, this company effort to maintain a union violates
provisions protecting the freedom of employees to organize as they
may wish. 49 Stat. 452, §§ 7, 8(1), (3), 29 U.S.C. §§ 157, 158(1),
(3).
Furthermore, upon the adjustment of this sit-down strike which
took place Friday, March 19th, after the occurrences just
described, the Affiliates requested and the employer ordered a
shutdown of the entire plant which lasted from March 22nd to April
5th. The Board found that this shutdown was for the purpose of
preventing "further proselyting" among members of the Affiliates by
the United. A vice-president of the employer testified to such
facts, learned by him in conference with officials of the
Affiliates who stated they needed the time to "get their lines in
order." Assistance to a union by a shutdown, like any other
employer assistance, is forbidden. [
Footnote 4]
Respondents assert that whatever employer assistance was
rendered the Affiliates was justified even under an interpretation
of the contract which restricts the oral portion to a requirement
that new members join the Affiliates. The assistance, it is urged,
was rendered to collective bargaining representatives, selected
freely by a majority of the employees and possessed of unrestricted
and unrevoked powers to negotiate generally over labor conditions,
including the closed shop clause of April 3rd and the new closed
shop contract of May 20, 1937. Under this view, since the
discharges took place after a valid closed shop amendment, they
were in conformity with § 8(3) of the Labor Act.
Page 315 U. S. 694
An examination of the proviso of § 8(3) will demonstrate the
error of this position. That proviso reads, so far as pertinent, as
follows:
"
Provided, That nothing in this 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."
Under the findings already sustained, the Affiliates were
assisted and maintained by the cooperation of the employer in
dealing with the old employees. Such acts encouraged the labor
organization in violation of the portion of § 8(3) preceding the
proviso, set out in
note 2
Consequently, when the closed shop agreement was adopted April 3rd,
it was invalid because entered into with a labor organization
assisted by an employer in the precise words of § 8(3) quoted
above.
Cf. International Assn. of Machinists v. Labor
Board, 311 U. S. 72,
311 U. S. 81.
Being invalid, the discharges violated §§ 7, 8(1) and (3).
Respondents, however, take the position that the Congressional
purpose embodied in the Labor Act is not served by such
literalness. As they see the situation, freedom to organize must
necessarily be qualified after uncoerced employees obtain validly
chosen majority representatives. Previously untrammeled rights,
they argue, must be subjected to the modicum of interference here
practiced, in order that the Congressional object of industrial
peace may be realized. We think, however, that the Board's
interpretation of the applicable language is correct. The provision
for a closed shop as permitted by § 8(3)
Page 315 U. S. 695
follows gramatically a prohibition of discrimination in hiring.
These words of the exception must have been carefully chosen to
express the precise nature and limits of permissible employer
activity in union organization. To permit employer interference
prior to the execution of a closed shop contract, as soon as a bare
majority of employees had properly selected their representatives,
would go far to restore the type of company-union coordination in
labor matters which the act forbids. [
Footnote 5]
Since we have held that assistance was given the Affiliates by
the unfair labor practice of encouraging membership in those
unions, it follows that the closed shop agreement of April 3rd,
requiring old employees to be members of the Affiliates, was made
with an assisted labor organization, and could be held invalid.
International Assn. of Machinists v. Labor Board,
311 U. S. 72,
311 U. S. 75.
How long that invalidity continues is an inference of fact for the
fair determination of the Board.
Cf. H. J. Heinz Co. v. Labor
Board, 311 U. S. 514,
311 U. S. 522.
Consequently, the refusal of the employer to permit the employees
to work without clearance from the Affiliates could be found a
forbidden interference and discrimination. § 8(1) and (3).
Labor Board v. Link-Belt Co., 311 U.
S. 584,
311 U. S. 601.
Further, the Board's conclusion that the infirmities of the April
3rd arrangement were destructive of the May 20th contract proceeds
naturally from its decision as to the effect of the employer
activities prior to April 3rd. The force of the unfair practices
was not necessarily dissipated so quickly.
Page 315 U. S. 696
The employer calls our attention to provisions of the order
reinstating employees which it feels erroneous. So far as this
objection is based on an interpretation of the 1936 oral contract
to require old employees to maintain their membership, it is
answered by prior portions of this opinion. The employer's refusal
to admit these old employees to work on and after April 5th is
properly remedied by reinstating them in their position and
granting them back pay.
There is a different basis, however, for the objection to the
reinstatement of the new employees. This is that, under any
interpretation of the oral clause of the 1936 contract, these men
must become members of the Affiliates, and therefore the employer's
refusal to take them back on their jobs is proper even though the
April 3rd arrangement is invalid. The Board answers that the April
3rd arrangement was an abandonment of the earlier oral clause, and
that, consequently, the discharges made pursuant to the later
invalid closed shop arrangements are improper. The abandonment, the
Board finds, was intentional, and therefore the subsequent
invalidation of the later arrangement did not revive the vitality
of the earlier oral contract.
This finding of abandonment of the 1936 membership clause was an
inference drawn by the Board from the circumstances surrounding the
adoption of the April 3rd arrangement. It is an inference the Board
is entitled to
Page 315 U. S. 697
make when supported by material evidence. To the Board, the
Congress has entrusted the appraisal of the evidence and the
drawing of such inferences. 49 Stat. 454, § 10(e);
Labor Board
v. Waterman S.S. Co., 309 U. S. 206,
309 U. S. 209;
Labor Board v. Link-Belt Co., 311 U.
S. 584,
311 U. S. 597.
The lack of positive evidence of the abandonment is natural. It was
found abandoned by the Board because of the actions of the parties,
the employer and the Affiliates, looking to the creation of a new,
all-embracing closed shop contract. While the Board found the 1936
oral clause had covered only new employees, the Affiliates issued a
notice to their members dated March 31st saying the
"solution to the problem [
i.e., 'the situation that
resulted in the closing of the plant'] is proper enforcement of the
present agreement, and that no one be allowed to resume work unless
affiliated with these organizations."
On April 3, 1937, the employer notified its employees that, in
1936, "it was agreed that we employ only persons affiliated with
said crafts" (the Affiliates). Such interpretation of the old
clause, varying so radically from that adopted by the Board, is not
conducive to clear-cut evidence of the purpose of the substitute
closed shop arrangement of April 3rd. Considered against the
background of coercion of old employees, the strike difficulties,
and the closing of the plant, all affected at least by the United's
membership campaign, we are not willing to say that the Board's
finding that,
"[i]n substance, though not in form, the arrangement effected
between the respondent and the A.F. of L. Affiliates on or about
April 3, 1937, was an abandonment of the oral agreement as
insufficient to meet the exigencies of the situation and its
replacement by a closed shop agreement"
is unsupported by substantial evidence.
We have noted the employer's objection to the burden of backpay
placed upon it because of the Board's alleged
Page 315 U. S. 698
delay in entering the final order. Handling of complaints as
quickly as is consistent with good administration is, of course,
essential. It is important both to the employer who may have to pay
back wages and to the employee who must live without his job.
Unfortunately this cause took from June 10, 1937, to December 31,
1939. There is nothing in the record, beyond a failure of the Board
to file an intermediate report, which would tend to justify us,
however, in shortening the period for compensation. This error was
admitted and corrected by the Board. We cannot penalize the
employees for this happening.
The judgment of the Circuit Court of Appeals is reversed with
directions to enforce the order of the Board except as to
reimbursement of federal, state, and local work-relief
projects.
It is so ordered.
MR. JUSTICE ROBERTS is of the opinion the judgment should be
affirmed for the reasons stated in the opinion of the Circuit Court
of Appeals, 120 F.2d 611.
[
Footnote 1]
Certain clauses of the order relating to reimbursement of
federal, state and local work relief projects are abandoned by the
Board and should be eliminated.
Republic Steel Corp. v. Labor
Board, 311 U. S. 7.
[
Footnote 2]
49 Stat. 452, c. 372, § 8:
"It shall be an unfair labor practice for an employer -- . . (3)
By discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization:
Provided, That
nothing in this Act or . . . any other statute of the United States
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."
29 U.S.C. § 158(3).
[
Footnote 3]
"I, the undersigned, . . . hereby authorize my Craft
Organization . . . to represent me and, in my behalf, to negotiate
and conclude all agreements as to hours of labor, wages and other
employment conditions. . . ."
"The full power and authority to act for the undersigned as
described herein supersedes any power or authority heretofore given
to any person or organization to represent me, and shall remain in
full force and effect for one year from date and thereafter,
subject to thirty (30) days' written notice of my desire to
withdraw such power and authority to act for me in the matters
referred to herein."
[
Footnote 4]
Labor Board v. Lund, 103 F.2d 815;
National Labor
Relations Bd. v. National Motor Bearing Co., 105 F.2d 652.
[
Footnote 5]
There is an illuminating comment in the Senate Report on the
Labor Bill. S.Rep. 573, 74th Cong., 1st Sess., p. 12:
"The assertion that the bill favors the closed shop is
particularly misleading in view of the fact that the proviso in two
respects actually narrows the now existent law regarding closed
shop agreements. While today an employer may negotiate such an
agreement even with a minority union, the bill provides that an
employer shall be allowed to make a closed shop contract only with
a labor organization that represents the majority of employees in
the appropriate collective bargaining unit covered by such
agreement when made."
"Secondly, the bill is extremely careful to forestall the making
of closed shop agreements with organizations that have been
'established, maintained, or assisted' by any action defined in the
bill as an unfair labor practice. And, of course, it is clear that
no agreement heretofore made could give validity to the practices
herein prohibited by section 8."