National Labor Relations Board v. Mason Mfg. Co., 9718.

• Decision Date: 20 April 1942
• Docket Number: No. 9718.,9718.
• Citation: 126 F.2d 810
• Parties: NATIONAL LABOR RELATIONS BOARD v. MASON MFG. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F.2d 810 (1942)

NATIONAL LABOR RELATIONS BOARD v. MASON MFG. CO.

No. 9718.

Circuit Court of Appeals, Ninth Circuit.

February 13, 1942.

As Modified on Denial of Rehearing March 23, 1942.

Second Rehearing Denied April 20, 1942.

COPYRIGHT MATERIAL OMITTED

Robert B. Watts, Gen. Counsel N.L. R.B., Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Bertram Edises, and Ralph Winkler, Attys., N.L.R.B., all of Washington, D.C., Charles M. Brooks, Regional Atty., N.L.R.B., of Seattle, Wash., and William R. Walsh, Regional Atty., N.L.R.B., of Los Angeles, Cal., for petitioner.

Arthur Garrett, of Los Angeles, Cal., for respondent.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

The National Labor Relations Board seeks our decree confirming its findings that respondent, Mason Manufacturing Company, had committed an unfair labor practice within Section 8(1) and 8(3) of the National Labor Relations Act, 29 U.S. C.A. § 158(1, 3), in discharging, on or about March 30, 1938, a number of its employee upholsterers formerly members of Upholsterers, Furniture, Carpet, Linoleum & Awning Workers' International Union of North America, Local No. 15, affiliated with the American Federation of Labor, and discouraging their membership in active labor organizations, including United Furniture Workers of America, Local No. 576, affiliated with the Committee for Industrial Organization, (now Congress of Industrial Organization,) and its orders that the respondent shall cease and desist from such and all other unfair labor practices and shall restore the discharged men to its employ with back pay. The facts support the Board's jurisdiction, which is not questioned.

Respondent admits that it discharged the upholsterers in its employ because they were not members of A. F. of L. Local 15. It does not contend that, in the absence of any other facts, this discharge would not constitute an unfair labor practice within the provisions of section 8(1) and 8(3) of the National Labor Relations Act. It contends and claims it has established the existence of a valid closed shop agreement with Local 15, made in October 1937, for the period of a year from October 1, 1937, whereby it was required under the provision of section 8(3) as a condition of employment of its upholsterers that they should be members of that Local. The existence of such a closed shop contract is the sole question of fact necessary for the disposition of the Board's petition.

In the proceeding below and in the argument here, it seems to have been assumed by both the Board and the respondent that a laborer who has membership in any labor organization, thereby designates or selects that union as his bargaining agent, and that any labor organization having in its membership a majority in a proper bargaining unit of the bargaining employer, such as the upholsterers employed by the respondent, may make a closed shop agreement with its employer. It is apparent from the words of the National Labor Relations Act that Congress did not so intend.

Section 8(3)¹ of the act providing for a closed shop does not provide that any labor organization having a majority of the employees may make such an agreement. It must be a "labor organization" which is "the representative of the employees as provided by section 9(a) 159(a) of this title".² Section 9(a) makes the representatives for collective bargaining only those "designated or selected" by "the majority of the employees" for that purpose.

If the plain words of the section did not require it, a consideration of the many different objectives for which laborers may self organize necessitates such a construction of the two provisions. Laborers may organize for nothing more than to present grievances or to bargain for better wages or for a particular working condition, or for mutual benefits, insurance or the like.^2a — All of which objectives may be exclusive of the closed shop. Likewise a laborer may be a member of two unions, and may designate one or the other as his collective bargaining agent for all purposes or for some such specific purpose as a closed shop. Likewise he may be a member of a union and designate the mayor of the city or the parish priest as his bargaining agent for anything but a closed shop.

Hence it is apparent that neither the Board nor the courts can take judicial notice that every labor organization is created for collective bargaining, much less that every self-organization or other union exists for collective bargaining for a closed shop.^2b

It is therefore necessary that in proceedings before the Board the party having the burden of proof of a closed shop agreement must show either (1) that a designation or selection of the labor organization claimed to have executed the agreement as an agent to bargain generally for working conditions or specifically for a closed shop has been made by a majority of employees in an appropriate unit of employees of the bargaining employer; or (2) that the employees are members of the labor organization claimed to have executed the agreement and that the organization is so constituted as to be empowered to act as such an agent, and that it has in its membership a majority of the employees in an appropriate unit of employees of the bargaining employer. In this latter instance, by joining the labor organization, ipso facto, the laborer has "designated or selected" it to be his agent to negotiate a closed shop agreement with his employer.

In this case the burden of proving the closed shop agreement was on the respondent. It would be a sufficient disposition to find that respondent cannot rely on such an agreement because, as the evidence discloses, it has not shown either (a) that it was made with A. F. of L. Local 15, at that time agent of a majority of the respondent's upholsterers by specific designation by each upholsterer, or (b) that Local 15 was a union constituted to be an agent for its members to bargain for a closed shop, and that mere membership of a majority of respondent's upholsterers created the agency for that purpose. However, the case before the Board was disposed of on other grounds, vigorously presented here, which we now consider.

Some time between March 15 and March 30, 1938, there was a document known in the proceedings as Exhibit A, signed by respondent and a representative of Local 15, which contained a closed shop provision with respect to Local 15 and Furniture Workers' Union No. 1561 (not here concerned) as follows:

"The Company agrees to employ none but members in good standing of one or the other of the two affiliated unions, as the type of employment may determine."

The Board claimed that Exhibit A could not be a binding closed shop agreement as of March 1938, because, as admitted, Local 15 did not then have in its membership a majority of the upholsterers employed by the respondent, as required by the proviso of section 8(3). Respondent attempted to meet the contention by the claim that Exhibit A was not an agreement made in March 1938, but a mere memorandum embodying an agreement made in the previous October, when Local 15 did have such a majority. Respondent then sought to prove the agreement made in October and...