Local 1104, Communications Workers of America, AFL-CIO v. N.L.R.B.

• Decision Date: 21 July 1975
• Docket Number: Nos. 446,AFL-CI,D,AFL-CIO,P,1034,s. 446
• Parties: 89 L.R.R.M. (BNA) 3028, 77 Lab.Cas. P 11,023 LOCAL 1104, COMMUNICATIONS WORKERS OF AMERICA,, and Local 1101, Communications Workers of America, , Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and New York Telephone Company and Wellington G. Rigby, Intervenors. ockets 74-2044, 74-2230.
• Court: U.S. Court of Appeals — Second Circuit

Page 411

520 F.2d 411

89 L.R.R.M. (BNA) 3028, 77 Lab.Cas. P 11,023

LOCAL 1104, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, and Local 1101, Communications Workers of America AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent and New York Telephone Company and Wellington G. Rigby, Intervenors.

Nos. 446, 1034, Dockets 74-2044, 74-2230.

United States Court of Appeals Second Circuit.

Argued June 5, 1975.

Decided July 21, 1975.

H. Howard Ostrin, New York City (Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City), and Kane & Koons, Washington, D. C., of counsel, for petitioners.

Frederick D. Braid, Mineola, N. Y. (Rains, Pogrebin & Scher, Bertrand B. Pogrebin, Mineola, N. Y., of counsel), for intervenor Rigby.

Bernard Yaker, New York City, George E. Ashley and William P. Witman, New York City, of counsel, for intervenor New York Telephone Co. Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Frank C. Morris, Jr., Atty., N. L. R. B., of counsel), for respondent.

Before SMITH, ANDERSON and OAKES, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This case presents a novel problem of accommodating a union's legitimate interests of self-preservation with employees' valid but conflicting claims to freedom from compulsory unionism. While our attempt to strike the proper balance must be guided by the National Labor Relations Act, 29 U.S.C. § 151 et seq., the case does not fall neatly under any of its specific provisions. The ensuing necessity to extrapolate from the statutory language, which itself frequently borders on the impenetrable, imparts considerable difficulty to the task of deciding the questions here presented. We are convinced, however as convinced as a court can be when asked to decide what the Congress would have done had it confronted a problem that did not occur to it that the National Labor Relations Board (hereafter the NLRB or the Board) was correct in its determination that the petitioning union locals committed unfair labor practices when they attempted to enforce an agency shop clause against employees who had been denied full union membership for reasons other than their failure to tender union dues. Accordingly, we deny the locals' petition for review and grant the Board's cross-application for enforcement.

I. THE FACTS

Although this case is here on a single petition for review of a single order of the Board, it in fact involves two separate cases, both concerning local unions of the Communications Workers of America, AFL-CIO (CWA), and employees of the New York Telephone Company (Telco).

A. The Local 1101 (Telco) Case.

Local 1101 of the CWA represents Telco employees in Manhattan and the Bronx. ¹ It participated in the CWA's nation-wide telephone strike in July, 1971. Although an agreement between the CWA and the Bell System was reached to end the strike nationally on July 21, the New York locals rejected the proposed settlement and stayed out until approximately February 18, 1972. ² The new contract with Telco which was ratified at that time contained the following "agency shop" provision:

ARTICLE 33

Agency Shop

33.01. Each regular employee shall, as a condition of employment, pay or tender to the Union amounts equal to the periodic dues applicable to members for the period beginning 30 days after hire or 30 days after February 17, 1972, whichever occurs later, until the termination of this collective bargaining agreement, except that an employee may terminate this condition of employment by giving a written individual notice to the Company and the Union of such termination by certified or registered mail, return receipt requested, and postmarked between July 8, 1974 and July 17, 1974 both dates inclusive.

During the strike, numerous employees who either resigned their union membership or never were union members crossed the picket lines and went to work. In July, 1972 four months after the strike's end at least twenty-nine of these employees ("the strikebreakers") applied for union membership and signed check-off cards authorizing the deduction of union dues from their pay. On or about August 18, 1972, Local 1101 denied their applications, solely because they had not participated in the strike. The employees then refused to tender amounts equivalent to union dues, whereupon the local, on or about December 4, 1972, demanded their discharge by Telco under the agency shop clause. Telco refused, and on February 2, 1973, it filed a charge of unfair labor practices against the union with the NLRB. The Regional Director issued a complaint, alleging that the local had violated § 8(b)(1)(A) and § 8(b)(2) ³ by denying union membership to the strikebreakers and again by attempting to invoke the agency shop clause against them. The Administrative Law Judge held that the unfair labor practices were committed as charged, and his decision was adopted by the Board. 211 NLRB No. 18 (1974).

B. The Local 1104 (Rigby) Case.

Wellington Rigby has been employed by Telco since 1948. He was a member of Local 1104 which has jurisdiction over Nassau County but resigned just prior to the 1971 strike. Although he honored the CWA's picket lines, he engaged in organizational activities on behalf of the Teamsters, a rival union, soon after the strike's end. His efforts proved unsuccessful and in July, 1972, he applied for membership in Local 1104 and executed a dues check-off card. On September 5, 1972, the local denied his application because of his activities on behalf of the Teamsters. Rigby then refused to tender any more dues, and the local attempted to invoke the agency shop clause to obtain his discharge. Rigby filed a charge with the Board; the Regional Director refused to issue a complaint, but was reversed by the Board's General Counsel. The complaint that ultimately issued unlike that in the Telco case did not claim that the refusal to admit Rigby to membership in the local was an unfair labor practice, but rather was limited to the invocation of the agency shop clause in an attempt to cause his discharge. The Administrative Law Judge held that this was indeed an unfair labor practice, and his conclusion was adopted by the Board.

II. DENIAL OF STRIKEBREAKERS' MEMBERSHIP APPLICATIONS.

Under § 8(b)(1)(A), a union may not restrain or coerce employees in the exercise of rights protected by § 7, 29 U.S.C. § 157. Clearly the strikebreakers were engaged in protected activity when they declined to participate in the strike. Local 1101 maintains that it was justified in denying them membership by the proviso to § 8(b)(1)(A), permitting unions to establish rules regarding the acquisition or retention of membership. But the strike itself was unlawful under § 8(d), see note 2, supra, and it is by now well established that the proviso to § 8(b)(1)(A) will not benefit a union in a case where its rules frustrate national labor policy. ⁴ Scofield v. NLRB, 394 U.S. 423, 429, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969); NLRB v. Communications Workers of America, AFL-CIO, Local 1170 (Rochester Telephone), 474 F.2d 778, 782 (2d Cir. 1972). The local argues that this doctrine is inapplicable here because there is no evidence that the strike's illegality motivated the strikebreakers to cross the picket lines. Subjective intent, however, is irrelevant. The strike's illegality is lessened not one whit by the personal motives of the strikebreakers, and the union, having violated the Act, must live with the consequences. It may not invoke the need to maintain loyalty in its ranks to exclude those who could have demonstrated their allegiance only by participating in unlawful activity. ⁵

The local seeks to shore up its argument on the merits with a procedural claim: It contends that the charge, insofar as it relates to the denial of membership, is time-barred under § 10(b) of the Act, 29 U.S.C. § 160(b) (". . . (N)o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge . . .."). The strike ended on or about February 18, 1972, the applications for membership were denied on or about August 18 of that year, and the charge was filed on February 2, 1973. If the six-month period began to run with the denials of membership on August 18, then clearly the charge was timely. But the local contends that the time must be computed from the last day of the strike, relying on Local Lodge No. 1424, International Association of Machinists v. NLRB, 362 U.S. 411, 416-17, 80 S.Ct. 822, 826, 827, 4 L.Ed.2d 832 (1960):

It is doubtless true that § 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of § 10(b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in...