National Labor Relations Bd. v. United Hoisting Co., 10677.

• Decision Date: 04 August 1952
• Docket Number: No. 10677.,10677.
• Citation: 198 F.2d 465
• Parties: NATIONAL LABOR RELATIONS BOARD v. UNITED HOISTING CO., Inc. et al.
• Court: U.S. Court of Appeals — Third Circuit

198 F.2d 465 (1952)

NATIONAL LABOR RELATIONS BOARD v. UNITED HOISTING CO., Inc. et al.

No. 10677.

United States Court of Appeals Third Circuit.

Argued May 23, 1952.

Decided August 4, 1952.

Bernard Dunau, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Marshall J. Seidman, Washington, D. C., on the brief), for National Labor Relations Board.

William J. Corcoran, New York City (Levy, Galotta & Corcoran, New York City, on the brief), for respondent Union.

Harold L. Luxemburg, New York City, for respondent Company.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The Labor Board found that the employer and the union were guilty of an unfair labor practice by giving effect to an invalid union-security agreement which resulted in the discharge of an employee because of his refusal to join the union. Application is made by the Board under Section 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., for enforcement of its order.

The original agreement between the employer, acting through the Construction Equipment Rental Association and the union, was dated June 18, 1947 — before the Taft-Hartley Act. It provided for priority employment to union members. Where union members were unavailable the employer was privileged to employ non-union workmen "* * * for a probationary period of not more than six weeks, and who shall comply during this probationary period with all requirements of Union membership. During this period if the employer determines to retain the employee, the Union hereby agrees to accept said employee as a member of its Union upon payment of its regular initiation fee, which shall not exceed $100." There was a provision for a union steward to monitor the terms of the agreement. The minimum time for termination of the agreement was fixed as December 31, 1948. On April 1, 1948, after the Taft-Hartley amendments to the Act, an addenda to the agreement was executed by the parties. By that addenda Article XI of the agreement which prohibited any change in the agreement until December 31, 1948, was amended to allow an immediate change; the term of the agreement was extended two full years to December 31, 1950; the hourly rates for mechanics and helpers were increased; stock clerks and storekeepers were eliminated from union membership entirely and the original agreement provision setting up a wage rate for such of that group as performed manual labor, was deleted. Certain other types of employees were eliminated from the terms of the agreement. The addenda stated that the original agreement was to continue "* * * in full force and effect" including the security provision except for the changes made.

There is testimony in the record to show that Huegel, the discharged employee, had been hired as a welder by the employer respondent on October 11, 1948. At that time Davidson, hiring foreman, explained to him the union-security clause of the agreement. In December, Huegel was told by the shop steward that he and three other new employees would be taken into the union after Christmas. Huegel said that on January 13, 1949, one of the new men above referred to told him that they were all to join the union that night. Huegel advised his foreman Davidson of this and inquired regarding his status as an employee. Huegel testified that the foreman told him it was "all right" and suggested that Huegel ride down to the union hall with the other candidates. The foreman denies this. On the point the Trial Examiner believed Huegel. Huegel did not go to the union hall that night and testified that the next day the shop steward asked him the reason for his non-attendance. Huegel replied that he had gone to a VFW meeting and said, "I believe I don't have to join the union." The steward replied, "Well, we will see about that. You will be through tonight." According to Davidson the morning after the union meeting the shop steward told him that Huegel had not gone to the union meeting and said "* * * that he should probably be laid off." Davidson testified that he told Gerome R. White, the company vice-president and secretary, Huegel had not joined the union. Davidson said that White made the decision to lay off Huegel on receipt of that information. White testified that after Davidson told him of Huegel's refusal, "* * I immediately said that it was a solution to our problem because of the fact that we had slackened up in our welding department." Huegel's evidence is that the afternoon of the same day Davidson came to him and said that he understood that he did not wish to join the union. Huegel assented to this and Davidson then advised him, "* * * this is a union shop. If you are not going to join the union, I will have to let you go for lack of work." That afternoon Huegel's wage check and separation notice marked "Lack of Work" were waiting for him.

In the light of the above evidence and upon the record as a whole the Trial Examiner found "* * * that the contention of the Respondents that Huegel was laid off because of lack of work is without merit." And therefore that "Everything considered, the undersigned is satisfied and finds that Huegel was discharged on January 14, 1949, rather than laid off, and that the motivating factor was Huegel's refusal to join the Union, rather than lack of work." The Board, reviewing this ruling, found that no prejudicial error had been committed and affirmed it. Our own examination of the record reveals substantial support for the finding. The contention of the union that, as a matter of law, the action of its shop steward, Paider, in requesting Huegel's discharge was not attributable to it is without merit and needs no discussion. The record reveals that the admission of testimony in connection with that episode was obviously not improper.

Respondents, though vigorously contending that Huegel was actually laid off solely because of lack of work, say that even assuming the situation as found by the Examiner, it would not be an unfair labor practice because though the type of union-security clause in the agreement involved was wiped out by the Taft-Hartley Act, the discharge pursuant to this particular clause was protected by Section 102 of that Act as "* * * the performance of * * * an obligation under a collective-bargaining agreement entered into prior to the date of the enactment of this Act."¹ The date of the enactment of the Act was June 23, 1947. The date of the original agreement was June 18, 1947.

The Examiner recognized that the agreement was prior to the enactment date of the Labor Management Relations Act but held that the provisions of the addenda to the agreement of April 1, 1948 made substantial changes in the original agreement. It will be remembered that the duration clause was extended for two years by the addenda. The Examiner concluded that whether the addenda be considered as amending the agreement and reasserting it as amended or as a new contract, "* * * by executing the addenda about April 1, 1948, the Respondents removed the agreement of June 18, 1947, from the protection of Section 102 * * *." The Board upheld this...