Union Starch & Refining Co. v. National Labor Rel. Bd.

• Citation: 186 F.2d 1008
• Decision Date: 02 February 1951
• Docket Number: No. 10144,10161.,10144
• Parties: UNION STARCH & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL NO. 153, A. F. OF L.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

186 F.2d 1008 (1951)

UNION STARCH & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD.

NATIONAL LABOR RELATIONS BOARD v. AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL NO. 153, A. F. OF L.

Nos. 10144, 10161.

United States Court of Appeals Seventh Circuit.

February 2, 1951.

George P. Ryan, Robert D. Risch, Indianapolis, Ind., (Ross, McCord, Ice & Miller, Indianapolis, Ind., of counsel), for Union Starch.

Luther Ely Smith, Jr., Victor B. Harris, Smith, Harris & Hanke, St. Louis, Mo. for Am. Fed. of Grain Millers.

A. Norman Somers, Bernard Dunau, George J. Bott, General Counsel, David P. Findling, Associate General Counsel, Duane Beeson, all of Washington, D. C., for National Labor Relations Board.

Louis S. Belkin, Akron, Ohio, for International Chemical Workers Union.

Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.

KERNER, Circuit Judge.

On October 11, 1948, the Regional Director for the National Labor Relations Board issued and filed a complaint against Union Starch and Refining Co. (hereinafter called the Company), a corporation engaged in interstate commerce, maintaining and operating a manufacturing plant at Granite City, Illinois, where it processes corn food products. The complaint was based on an amended charge filed with the Board by John Ralph. It charged that the Company had committed unfair labor practices within the meaning of §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act as amended by the Labor Management Relations Act, 1947, 29 U.S.C.A. § 158 (a) (1, 3) and (b) (2). A similar complaint was issued against Grain Processors Independent Union, Local No. 1 (the Union changed its name to American Federation of Grain Millers, Local 153 AFL, and will hereinafter be designated as the Union), alleging that the Union had engaged in unfair labor practices within the meaning §§ 8(b) (1) (A) and 8(b) (2).

The principal question involved is whether employees who request union membership and tender initiation fees and dues, but fail to comply with other union-imposed conditions for acquisition of membership, are protected by the Act from discharge under the terms of a valid union security agreement.

There is no dispute as to the facts. On April 2, 1948 the Company and the Union executed a collective bargaining or union security contract which required as a condition of employment, membership in the Union within thirty days from the date of the contract or from the date of employment, whichever was later. April 5 the Company posted on its bulletin boards a notice whereby the employees were advised of the execution of the contract and its provisions. April 28 John Ralph, Nellie Ralph, his wife, and Mary Rawlings called at the office of the Union where they talked with one Bloodworth, the Union's business agent. Bloodworth informed them that in order to join the Union it was necessary to pay dues and an initiation fee, file an application card, attend the next meeting of the Union, on May 6, and take an oath of loyalty to the Union. The Ralphs and Rawlings tendered the proper amount of the initiation fee and dues which Bloodworth refused to accept until they had been voted upon and had taken the obligation of membership. Ralph told Bloodworth that he did not care whether Bloodworth made out applications for him and his wife but that they would never take an oath, and when Bloodworth made it clear that the oath was a condition precedent to union membership, the Ralphs left without further conversation.

The Ralphs and Rawlings failed to attend the union meeting on May 6 or any other meeting. Rawlings did not attend the meeting on May 6 because her husband had broken his finger and needed care. She was willing to take the union oath, although she was uncertain as to whether she should do so in view of her membership in another AFL union. She wanted time to obtain advice on the matter, and had no objection to attending a union meeting in order to have her application voted on. Her application, however, was submitted to the Union and she was accepted as a member.

On May 7, without reference to the failure to attend the meeting, the Union informed the Company by letter that the Ralphs and Mary Rawlings had failed to pay initiation fees and dues as required by the union shop clause of the collective bargaining agreement, and demanded their discharge. Thereupon the Company undertook an investigation to determine whether union membership was available to the Ralphs and Rawlings on the same terms and conditions generally applicable to other members. The Company's personnel director met with the employees in question. He showed to each employee the Union's demand for discharge and asked each employee to make a signed statement of his position on the matter. The employees complied with the request, and in their declarations stated that they had tendered their initiation fees and dues to the Union on April 28, but that the tender was rejected on the ground that they had not fulfilled other union-imposed conditions of membership.

On May 12 the Company received another letter from the Union in which it was stated that the Union uniformly required all applicants for membership to attend a regular union meeting for the purpose of having their applications voted on. In the letter the Union requested the discharge of the employees who had failed to comply with this condition of membership, and the Company was threatened with a work stoppage unless it acceded to the Union's demand. Thereupon the Company again called in the employees who were not union members and handed each of them a written questionnaire in which each employee was asked (1) whether he was willing to tender the periodic dues and the initiation fee; (2) whether he was willing to take the obligation as a member of the Union; and (3) whether he would attend the regular union meeting at which his application for membership would be voted upon, which were conditions uniformly required by the Union of applicants for membership. All the employees returned the questionnaire answering the three propositions "yes" except the Ralphs and Rawlings. The Ralphs and Rawlings were discharged on May 13, 1948 because they were non-members of the Union, not on the ground that they had not tendered dues and initiation fees, but because they had failed to file an application card, attend a meeting of and take an oath of loyalty to the Union.

Section 8(a) (3) forbids an employer by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization, but that section permits the employer to make an agreement which may require as a condition of employment "membership" in the contracting labor organization. The making of such an agreement, however, is circumscribed by provisos (A) and (B) of that section which provide: "* * * no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;"

And § 8(b) (2) makes it an unfair labor practice for a labor organization — "to cause or attempt to cause an employer to discriminate against an employee * * * with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;"

A majority of the Board was of the opinion that the provisos spell out two separate and distinct limitations on the use of the type of union security agreements permitted by the Act; that proviso (A) protects from discharge for nonmembership in the contracting union any employee to whom membership was not available for some discriminatory reason, and that proviso (B) protects the employee who tenders the requisite amount of dues and initiation fee and is denied membership for any other reason, even though that reason be nondiscriminatory. It concluded that if a union "imposes any other qualifications and conditions for membership with which he is unwilling to comply, such an employee may not be entitled to membership, but he is entitled to keep his job." And the Board found that the Company had discharged employees John Ralph, Nellie Ralph and Mary Rawlings in violation of § 8(a) (3), and that the Union caused the Company to discriminate against the employees in violation of § 8(b) (2) of the amended Act. In addition, the Board found that by causing the Company discriminatorily to discharge the employees, through the illegal application of its contract, the Union restrained and coerced the employees in the exercise of the rights guaranteed by § 7 of the Act, and thereby also violated § 8(b) (1) (A) of the amended Act. The Board ordered that the employees be reinstated, and since both the Company and the Union were responsible for the discrimination suffered by the employees, it ordered the Company and the Union jointly and severally to make the employees whole for any loss of pay they may have suffered. 87 N.L.R.B. 187. It is this order that the Company desires vacated and set aside; and the Board prays that the order be enforced.

The Union contends that it had the right to prescribe nondiscriminatory terms and conditions for acquiring membership in addition to that of tendering dues and initiation fees. The Company and the Union insist that since all employees were required to file an application, attend the first meeting, be voted on, and take the obligation of membership, membership in the Union was available to the discharged...