National Labor Relations Board v. Gaynor News Co.

• Decision Date: 24 June 1952
• Docket Number: Docket 22297.,No. 231,231
• Citation: 197 F.2d 719
• Parties: NATIONAL LABOR RELATIONS BOARD v. GAYNOR NEWS CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

197 F.2d 719 (1952)

NATIONAL LABOR RELATIONS BOARD v. GAYNOR NEWS CO., Inc.

No. 231, Docket 22297.

United States Court of Appeals Second Circuit.

Argued May 13, 1952.

Decided June 24, 1952.

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George J. Bott, David P. Findling, A. Norman Somers, Frederick U. Reel, all of Washington, D. C., and Louis Schwartz, Paterson, N. J., for petitioner.

Bandler, Haas & Kass and Julius Kass, all of New York City, for respondent.

Vladeck & Elias, New York City (Stephen C. Vladeck and Milton Horowitz, New York City, of counsel), for Newspaper & Mail Deliverers' Union of New York.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The Board has found the employer-respondent guilty of violating Sections 8(a) (1) (2) and (3), National Labor Relations Act, 29 U.S.C.A. § 158(a) (1-3), by (1) retroactively paying wage increases and vacation benefits to union members only, and (2) agreeing to and enforcing an illegal union shop contract in 1948 without first obtaining Board certification that a majority of employees had authorized such an agreement in a union shop election. The employer admits substantially all the facts of both violations, but, on several grounds, defends its actions and repudiates the consequences.

1. It says, first of all, that § 10(b) of the Act, 29 U.S.C.A. § 160(b) prohibits prosecution for refusing the retroactive benefits to anyone but Loner, the employer who first filed charges. This original charge was later amended — more than six months after the violations charged — to include (a) a charge of the same discriminatory treatment of other non-union employees besides Loner, and (b) a charge that the 1948 contract was illegal and in violation of employees' rights under § 8(a) (1) (2) (3) of the Act. Section 10(b) of the Act reads:

"No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made".

This section has been uniformly interpreted to authorize inclusion within the complaint of amended charges — filed after the six months' limitation period — which "relate back" or "define more precisely" the charges enumerated within the original and timely charge. The "relating back" doctrine for this purpose has been liberally construed to give the Board wide leeway for prosecuting offenses unearthed by its investigatory machinery, set in motion by the original charge. N. L. R. B. v. Kobritz, 1 Cir., 193 F.2d 8, 14-16; Cusano v. N. L. R. B., 3 Cir., 190 F.2d 898, 903-904; N. L. R. B. v. Kingston Coke Co., 3 Cir., 191 F. 2d 563, 567; Kansas Mill. Co. v. N. L. R. B., 10 Cir., 185 F.2d 413, 415. Thus a general allegation in the original complaint that the employer had interfered with employees in the exercise of their § 7, 29 U.S.C.A. § 157, rights by restraining and coercing them, discriminating in regard to hire and tenure and refusing to bargain in good faith, was subsequently — more than six months after the date of the alleged violation — amended to allege discharges of particular employees for legitimate union and strike activities. Kansas Milling Co. v. N. L. R. B., 10 Cir., 185 F.2d 413, 416.

We feel that the enlarged complaint can be justified here on the "relating back" theory in so far as the additional victims of the discriminatory treatment are concerned. Here the violation and the facts constituting it remainded the same as in the original charge; only the number of those discriminated against was altered. This addition certainly could not prejudice the employer's preparation of his case, or mislead him as to what exactly he was being charged with. Cf. N. L. R. B. v. Reliable Newspaper Delivery, Inc., 3 Cir., 187 F.2d 547, 550 n. 3; Consolidated Edison v. N. L. R. B., 305 U.S. 197, 238, 59 S.Ct. 206, 83 L.Ed. 126. The same is true of the additional allegation in the final complaint that action previously categorized as a violation of §§ 8(a) (1) and (3) constituted also a violation of § 8(a) (2). This was a change in legal theory only, and not in the nature of the offense charged. Cusano v. N. L. R. B., 3 Cir., 190 F.2d 898, 903. As to the charge of illegality concerning the 1948 contract, we agree that, so long as that contract continued in force, if actually illegal, a continuing offense was being committed by the employer. Since the contract was still in force at the time of filing, the six months' limitation period of § 10(b) had not even begun to operate. See Superior Engraving Co. v. N. L. R. B., 7 Cir., 183 F.2d 783, 790; Katz v. N. L. R. B., 9 Cir., 196 F.2d 411. The complaint was, then, in all respects valid.

2. This brings us to the substance of the complaint. The employer admits giving union members retroactive wage increases and vacation benefits while denying them to non-union members. It claims, however, that such action had neither the purpose nor the effect required by § 8(a) (3), i. e., to encourage membership in any labor organization; that the Board failed to prove that purpose and effect, and that, therefore, the action cannot be sanctioned. Loner, the original complainant, it is argued, had already unsuccessfully done everything he could to enter this union; his membership application was pending at the time of the violation; nothing the employer could do would amount to further "encouragement" of that membership. The employer relies heavily on N. L. R. B. v. Reliable Newspaper Delivery, Inc., supra. There an employer acceding to the requests of a minority union, bargaining on a members-only basis, gave union members discriminatory advantages over non-union members. The Court held that such discrimination could not have the necessary effect of encouraging union membership because the union was a closed one, with membership passing exclusively from father to son. There is, however, one significant distinction between that case and this one. There discrimination resulted from what the court considered the entirely legal action of the minority union in asking special benefits for its members only. The union made no pretense of representing the majority of employees or of being the exclusive bargaining agent in the plant. The other non-union employees, reasoned the Court, were quite able to elect their own representative and ask for similar benefits. Not so here. The union here represented the majority of employees and was the exclusive bargaining agent for the plant. Accordingly, it could not betray the trust of non-union members, by bargaining for special benefits to union-members only, thus leaving the non-union members with no means of equalizing the situation.

True, the Third Circuit in the Reliable case went on to say that, even assuming unfair discrimination, it was up to the Board to prove that this discrimination had the purpose and effect of encouraging union membership. Several cases, including one of our own, N. L. R. B. v. Air Associates, 2 Cir., 121 F.2d 586, 592, were cited there to support this interpretation of § 8(a) (3). But see our explanation of that case in N. L. R. B. v. Cities Service Oil Co., 2 Cir., 129 F.2d 933, 937. The Board, on the other hand, here cites Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 800, 65 S.Ct. 982, 89 L.Ed. 557, for the proposition that no statistical proof of an actual "encouraging" effect on union membership need be shown where the discriminatory conduct by its nature "tends to encourage or discourage" union membership. See also N. L. R. B. v. John Engelhorn & Sons, 3 Cir., 134 F.2d 553, 557; N. L. R. B. v. Illinois Tool Works, 7 Cir., 153 F.2d 811, 814; N. L. R. B. v. Ford, 6 Cir., 170 F.2d 735, 738.

Our own view comes to this: Discriminatory conduct, such as that practiced here, is inherently conducive to increased union membership. In this respect, there can be little doubt that it "encourages" union membership, by increasing the number of workers who would like to join and/or their quantum of desire. It may well be that the union, for reasons of its own, does not want new members at the time of the employer's violations and will reject all applicants. But the fact remains that these rejected applicants have been, and will continue to be, "encouraged," by the discriminatory benefits, in their desire for membership. This backlog of desire may well, as the Board argues, result in action by non-members to "seek to break down membership barriers by any one of a number of steps, ranging from bribery to legal action." A union's internal politics are by no means static; changes in union entrance rules may come at any time. If and when the barriers are let down, among the new and now successful applicants will almost surely be large...