LOCAL LODGE NO. 1424, INT. ASS'N OF MACHINISTS v. NLRB

• Decision Date: 27 February 1959
• Docket Number: No. 14257,14324.,14257
• Citation: 264 F.2d 575,105 US App. DC 102
• Parties: LOCAL LODGE NO. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO; and International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRYAN MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 102, 264 F.2d 575 (1959)

LOCAL LODGE NO. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO; and International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRYAN MANUFACTURING COMPANY, Respondent.

Nos. 14257, 14324.

United States Court of Appeals District of Columbia Circuit.

Argued October 3, 1958.

Decided February 27, 1959.

COPYRIGHT MATERIAL OMITTED

Mr. Bernard Dunau, Washington, D. C., with whom Mr. Plato E. Papps, Washington, D. C., was on the brief, for petitioners in No. 14257.

Mr. Frederick U. Reel, Attorney, National Labor Relations Board, with whom Messrs. Jerome D. Fenton, General Counsel, National Labor Relations Board, Thomas J. Dermott, Associate General Counsel, National Labor Relations Board, Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, and William W. Watson, Attorney, National Labor Relations Board, were on the brief, for respondent in No. 14257 and petitioner in No. 14324.

Mr. Frank L. Gallucci, Highland Park, Mich., with whom Mr. Abraham Dobkin was on the brief, for respondent in No. 14324. Mr. Plato E. Papps, Washington, D. C., also entered an appearance for respondent in No. 14324.

Before PRETTYMAN, Chief Judge, and FAHY and BURGER, Circuit Judges.

BURGER, Circuit Judge.

The Bryan Manufacturing Company (respondent in 14324), which then employed about 150 persons in its Reading, Michigan, plant, received a letter in July 1954 from the International Association of Machinists advising that the Machinists represented "a majority of the `production and maintenance' employees of your company." The Machinists sought a collective bargaining agreement.

In the proceedings from which this appeal arises it was found by the Trial Examiner and the Labor Board that the Machinists did not in fact represent a majority of the company's employees at that time, and this finding of no majority is not challenged here.¹ At the time the Company received the letter, Local 701, United Auto Workers, was engaged in organizing activities among Bryan employees at the Reading plant, but this was discontinued after the Company signed a collective bargaining agreement with the Machinists.

On August 10, 1954, the Company signed a contract with the Machinists without first seeing or seeking any evidence that the Union represented a majority of its employees. No employee authorization cards were shown to management representatives, no election was held, and the Company made no independent inquiry as to the desires of its employees. The August 10, 1954 contract contained a conventional union shop clause and a dues checkoff provision.

On June 9, 1955, approximately ten months after the 1954 contract was signed, but two months before it was renewed in a 1955 contract having the same union shop and dues checkoff provisions, one Maryalice Mead² filed a charge of unfair labor practices against the Machinists and the Company; on August 5, 1955, she filed supplemental charges.³ Each charge asserted the frustration of a free choice of the employees in the selection of a bargaining agent. On October 5, 1955, separate complaints were filed against the Union and the Company on the basis of these charges, and the complaints were consolidated for hearing and determination.

On August 30, 1955, the Union and the Company signed a new contract which included employees at an additional Bryan plant in a nearby town. Although the new contract had revised seniority provisions, was effective for a different term, and contained several other changes, it had a union shop clause and a dues checkoff provision identical to those in the 1954 contract.

Between August 1954 and August 1955 the Company expanded its operation from 150 to 350 employees, and by November 1955 there were 480 persons covered by the contract. Each new employee hired was compelled to join the Machinists union within 45 days of being hired, and each signed an individual dues checkoff authorization. The Union does not challenge the finding that the identical union shop provisions in the 1954 and the 1955 contracts were enforced during the period pertinent here, and that the dues of every employee were checked off under the respective provisions.

The Union now seeks review and the Board enforcement of an order and finding that both the Union and the Company violated the Labor Act⁴ by maintaining and enforcing the union shop provision⁵ and the dues checkoff agreement⁶ in the two contracts. The Board held that such enforcement was an unfair labor practice because the basic contract was formally executed at a time when the Union did not represent a majority of the Company's employees. The primary issue presented on appeal is whether the Labor Act's statute of limitations⁷ bars the Board from finding that these acts, i. e., the enforcement of the union shop and the monthly checkoff of dues, were unfair labor practices.

Our scope of review is limited to determining whether there is substantial evidence in the record as a whole to support the Board's findings of fact, Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456, and whether the Board has applied the statute in "a just and reasoned manner." Gray v. Powell, 1941, 314 U.S. 402, 411, 62 S.Ct. 326, 332, 86 L.Ed. 301. Having in mind this limited scope of review, we are constrained to uphold the Board's conclusion.

If the alleged violation were the mere signing of the original contract in 1954 as distinguished from continuing and repeating its enforcement against employees, the Board's order would be invalid under § 10(b). It was rational, however, for the Labor Board to conclude that the violation charged was a continuing one, repeated anew each time the union security clause was enforced or dues checked off. Hence, the statutory period had not expired. N.L. R.B. v. Gaynor News Co., 2 Cir., 1952, 197 F.2d 719, affirmed sub nom. Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B. 1954, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455; Katz v. N.L.R.B., 9 Cir., 1952, 196 F.2d 411. New employees were affected by the contract as they were employed. Each month up to and including the month when the charge was served, dues were deducted from the wages of each employee of the company, including Maryalice Mead, who filed the charge. Thus the contract provisions had a positive impact which was repeated regularly from time to time as to each employee.

It is contended that § 10(b) prevents the Board from relying on events occurring more than six months prior to service of the charge in order to prove a violation. The union security clause and the dues checkoff provision here involved were proper on their face. Therefore in order to show the illegality of enforcing these agreements, the Board was compelled to look back more than six months in order to show that the Union did not represent a majority of employees when the contract was signed. According to the Union and the Company, the Board may not do this. This issue raises questions on which authority is limited and no cases are precisely or directly in point.

In N.L.R.B. v. Gaynor News Co., supra, the Second Circuit upheld a finding that it was a continuing violation for a company to enforce a union shop contract without first obtaining Board certification that a majority of employees had authorized such a contract. Under the then existing law no union shop contract was valid without such a certification.⁸ In the case before us the Union and the Company would distinguish the Gaynor News case on the basis that there the absence of the required certificate was observable within the six-month period. There was no need in that case, they point out, to go back beyond the statutory period to demonstrate the illegality of enforcing the union shop clause. Cf. N.L.R.B. v. Carpenters Local, Union No. 1028, A.F. L., 10 Cir., 232 F.2d 454, certiorari denied, 1956, 352 U.S. 839, 77 S.Ct. 60, 1 L.Ed.2d 56. In the instant case no evidence from within the statutory period will serve to show why enforcement is illegal.

Section 10(b) is, however, a statute of limitations and not a rule of evidence. N.L.R.B. v. Clausen, 3 Cir., 188 F.2d 439, 443, certiorari denied 1951, 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 653 (dictum). The established rule is that evidence of "transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny." F.T.C. v. Cement Institute, 1948, 333 U.S. 683, 705, 68 S.Ct. 793, 805, 92 L.Ed. 1010. This rule is, of course, subject to the important qualification that testimony as to such barred events may be received only as background evidence and may not be given independent significance. See Paramount Cap Mfg. Co. v. N.L.R.B., 8 Cir., 1958, 260 F.2d 109. Put in another way, there must be acts occurring within the six-month period of sufficient status to constitute the violation charged, and evidence of acts outside the period can be received only to illuminate and explain the events within the period.

This brings us to the crux of the case: was the fact that the union did not represent a majority of Bryan employees when the contract was signed of such independent significance that its use in evidence is barred by § 10(b) or does this fact, in these circumstances merely serve to illuminate and explain the subsequent enforcement of the contract — an occurrence taking place within the statutory period?

The Board did not find here that the formal execution of the 1954 contract with its union security clause and its dues checkoff provision violated the act. It found rather that maintenance and enforcement of the 1954 contract was an unfair labor practice and further that the signing of the 1955 contract also constituted a violation.⁹...