National Labor Relations Bd. v. Pape Broadcasting Co.

• Citation: 217 F.2d 197
• Decision Date: 28 January 1955
• Docket Number: No. 14944.,14944.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAPE BROADCASTING COMPANY (Radio Station WALA) and Local Union No. 1264, Radio Broadcast Technicians, International Brotherhood of Electrical Workers, AFL, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

217 F.2d 197 (1954)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAPE BROADCASTING COMPANY (Radio Station WALA) and Local Union No. 1264, Radio Broadcast Technicians, International Brotherhood of Electrical Workers, AFL, Respondents.

No. 14944.

United States Court of Appeals Fifth Circuit.

December 2, 1954.

As Modified on Denial of Rehearing January 28, 1955.

David P. Findling, Assoc. Gen. Counsel, N. L. R. B., A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., George J. Bott, General Counsel, John E. Jay, Attorneys, National Labor Relations Board, Elizabeth W. Weston, Atty., N. L. R. B., Washington, D. C., for petitioner.

Thomas E. Twitty, Mobile, Ala., Thomas S. Adair, J. R. Goldthwaite, Jr., Atlanta, Ga., Adair & Goldthwaite, Atlanta, Ga., for respondents Local Union 1264, I. B. E. W.

Inge, Twitty, Armbrecht & Jackson, Mobile, Ala., for respondent Pape Broadcasting Co.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

This is a petition of the National Labor Relations Board for enforcement of its order of April 13, 1953, 104 N.L.R.B. No. 2, against the respondents, based upon findings that respondent Local 1264 violated Sections 8(b) (1) (A) and 8(b) (2) of the Labor Management Relations Act, 29 U.S.C.A. §§ 158(b) (1) (A) and 158(b) (2), by causing respondent Company to discharge John A. Thompson for a reason other than failure to tender union dues and initiation fees, namely, his failure to surrender his membership in another IBEW Local; and that the Company violated Sections 8(a) (1) and 8(a) (3), 29 U.S.C.A. §§ 158(a) (1) and 158(a) (3), by discharging Thompson when it had reasonable grounds to believe that Local 1264 sought his discharge for a reason other than failure to tender initiation fees and dues to that union. The order sought to be enforced directed that the Company reinstate Thompson, that Local 1264 withdraw any objections thereto, that both respondents cease and desist from committing the above unfair labor practices, that both respondents jointly and severally make Thompson whole for the loss of pay suffered by him, that certain notices be posted, and that various records be made available and reports of compliance be submitted to the Board.

The Court has jurisdiction over this proceeding under Section 10(e) of the Act, 29 U.S.C.A. § 160(e) since the Company is engaged in interstate commerce and the acts found to constitute unfair labor practices occurred in Mobile, Alabama, within this Circuit.

We consider it unnecessary to recount or to comment at length upon the evidence of the unfair labor practices by Local 1264, being satisfied that upon the record as a whole there is substantial evidence to support the Board's findings of fact with respect thereto. An employee is entitled to job protection against the union under Section 8(b) (2) if he does nothing more than to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the union. Radio Officers' Union of Commercial Telegraphers Union, A. F. L. v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323; Union Starch & Refining Co. v. N. L. R. B., 7 Cir., 186 F.2d 1008, 27 A.L.R.2d 629, certiorari denied 342 U.S. 815, 72 S.Ct. 30, 96 L.Ed. 617. There is ample evidence in the record that Thompson made an actual tender of initiation fees and dues within a thirty-day extension voluntarily given by the local and that this tender was refused by the union;¹ and that even if the tender had been formally defective, the requirement of tender was excused entirely as the Board found, by the union's affirmative obstructive conduct, as in N. L. R. B. v. International Association of Machinists, 9 Cir., 203 F.2d 173. But even should we disregard this evidence with respect to Thompson's several efforts to pay dues, there is substantial evidence in the record showing that the true reason for the union's request for Thompson's discharge was his reluctance to give up membership in another local of the IBEW and the hostility created in Local 1264's members by that reluctance, once he had bowed to union pressure and given up his other membership. This conclusion of fact alone would be sufficient to sustain the Board's order against the union. Special Machine & Engineering Co., 109 N.L.R.B. No. 125. Respondents' argument that the union can, during a period of "grace" accorded by it in addition to the thirty day period for employees to tender dues to the labor organization under Section 8(a) (3), 29 U.S.C.A. § 158(a) (3), impose a condition (giving up membership in a sister local) besides tender of dues and initiation fees, upon the right of an employee not to be discriminated against in tenure of employment, is without merit. Under no circumstances does the Act permit union security agreements to be invoked to enforce any union rule besides simply the payment of dues and initiation fees. Radio Officers' Union of Commercial Telegraphers Union, A. F. L. v. N. L. R. B., supra.

Whether the Pape Broadcasting Company is shown by substantial evidence on the record considered as a whole to have been guilty of unfair labor practices involves in addition to substantial evidence of Thompson's discharge for failure to become a member of the union, also substantial evidence that the Company had reasonable grounds to believe that Thompson was denied membership for a reason other than failure to tender dues and initiation fees. We do not believe the record considered as a whole shows substantial evidence of this latter element.

The Trial Examiner concluded, and the Board adopted as its conclusions on this issue, as follows:

"As hereinabove found, Respondent Station WALA was given every assurance by Respondent Local Union 1264 that its request for Thompson\'s discharge was strictly in accordance with law and with its union-security agreement. In addition it diligently investigated the request for discharge in its attempt to get to the bottom of the Thompson case. It is precisely these facts which impel a finding that Respondent Station WALA violated the Act. Martin General Manager of the Company admittedly was told in his conversation with Bailey and Bell on September 22, that Thompson could achieve membership in good standing in Respondent Local Union 1264 by depositing a valid traveling card and it was because of his failure to meet this condition that his termination was being pressed by Respondent Local Union 1264. Martin also admitted that Thompson told him on September 19, that he had previously tendered initiation fees and dues to Respondent Local Union 1264. With full knowledge of these facts (Martin also received copies of practically all the correspondence between Respondent Local Union 1264 and Thompson), Respondent Station WALA acceded to the request for Thompson\'s discharge. While it is true as counsel for Respondent Station WALA points out in his brief, that under the circumstances in which it found itself, `the employer had to take hold of one horn of the dilemma\' unfortunately in so doing it committed an unfair labor practice. Cf. Westinghouse Electric Corporation, 96 N.L.R.B. 71.

"Upon the whole record, I am constrained to find that Respondent Station WALA discharged Thompson on September 22, 1951, because he was not a member of Respondent Local Union 1264. As Respondent Station WALA knew that Thompson tendered the periodic dues and initiation fee uniformly required as a condition of membership without being accorded membership, I find that Respondent Station WALA discriminated in regard to hire or tenure of employment to encourage membership in Respondent Local Union 1264 in violation of Section 8(a) (3) of the Act and thereby interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 in violation of Section 9(a) (1)."

These paragraphs fairly sum up the evidence supporting the inference that the Company committed unfair labor practices; they do not, however, mention certain other evidence tending to negative that inference. If there were no other, no doubt the evidence summed up above would constitute substantial evidence supporting the Board's conclusion of fact. But we are under a twofold duty to look to the entire record and to pass beyond these evidentiary facts; first, because the Act, 29 U.S.C.A. § 160(e), requires us to consider the record as a whole, and second, because we take cognizance of the obvious truth that in forming beliefs reasonable men do in fact consider all the information available, and that in consequence, "reasonable grounds to believe" may not be inferred from isolated facts but on the contrary must consist of all the conflicting evidence available to the person sought to be charged with the belief, which furthermore must be sufficient for a reasonable man to form a belief upon evaluation thereof.

In the first place, the Trial Examiner's statement quoted above that "Martin admittedly was told in his...