National Labor Relations Board v. Kingston Cake Co.

• Decision Date: 17 July 1953
• Docket Number: No. 10932.,10932.
• Parties: NATIONAL LABOR RELATIONS BOARD v. KINGSTON CAKE CO., Inc. et al.
• Court: U.S. Court of Appeals — Third Circuit

206 F.2d 604 (1953)

NATIONAL LABOR RELATIONS BOARD v. KINGSTON CAKE CO., Inc. et al.

No. 10932.

United States Court of Appeals Third Circuit.

Argued March 3, 1953.

Decided July 17, 1953.

Marcel Mallet-Prevost, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Mark C. Curran, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Max Rosenn, Wilkes-Barre, Pa. (Harold Rosenn, and Solomon Lubin, Wilkes-Barre, Pa., on the brief), for Kingston Cake Co., Inc.

R. Lawrence Coughlin, Albert N. Danoff, Wilkes-Barre, Pa., for Kingston Mut. Assn.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order requiring the employer to offer reinstatement to its former employee, Franklin Williams, and, jointly and severally with the union, to make Williams financially whole, and to post the related notices. The case has been here before¹ at which time we remanded in order to have the board pass upon a question which we deemed essential. The board has done so and again seeks enforcement. Even though we had the case before, a rather full exposition of the facts is necessary because of the view we take of the matter.

Since 1946 there had been competition between the Kingston Mutual Association and the Bakery and Confectionery Workers, AFL, for the position of exclusive bargaining representative of the company's employees. Williams, whose discharge is here in issue, except for a term of military service and a short period with another employer, had worked for the company since 1941. In 1946, the Pennsylvania Labor Relations Board conducted a representation election which was won by the association. Williams supported the bakery workers in the campaign preceding this election. After that election, Williams lent his support to the association and was later elected a member of the Employee Board, representing his fellow employees in the shipping department. In January of 1947, the association entered into a two-year contract with the company. Upon the expiration of that contract in January of 1949, Local 423 of the bakery workers filed a representation petition with the board. In the campaign preceding this election, Williams again espoused the cause of the bakery workers. In order that the association could get on the ballot, it was necessary that its officers execute and file with the board the non-Communist affidavits required by Section 9(h) of the Act.² On January 17, 1949, all the officers of the association received blank affidavits from the association secretary-treasurer and were requested to sign them. Williams said that he would take his home and would think about signing it. The next day all the other officers had executed their affidavits and returned them except Williams who refused to sign his, stating that, by so doing, he hoped to keep the association off the ballot and, eventually, to bring about its downfall, thus enabling the bakery workers to prevail. On January 19, the association officers suspended him from its Employee Board. Thereafter, the Employee Board charged him with a violation of the association's bylaws and set a hearing for January 22. At some time before the hearing, however, Williams changed his mind and decided to execute an affidavit. Having lost the one originally given him, he obtained another from the business agent of the bakery workers, executed it, and gave it to the secretary-treasurer of the association on January 22, immediately prior to the meeting. He was told that this form was no good because it was an old one, but he was not asked to execute another form, nor did he offer to do so. The January 22 hearing was indefinitely postponed because of the absence of counsel for the association.

Williams' suspension having enabled the association to comply with the filing requirement of Section 9(h), the representation election was conducted by the board on February 3, and the association won.

The association and the company executed another two-year contract. This contract contained a union-shop clause, necessitating a union-security election under Section 9(e) of the Act.³ The board conducted such an election on March 24, and almost 90 per cent of the employees voted in favor of the union-security clause. The board's field representative revealed the results immediately after the election, but formal certification did not come until May 16.

Following the representation election, the association officers again considered the charges against Williams and decided to prosecute despite Williams' offer to execute a new affidavit. A hearing was held on March 21, but decision was reserved until April 12, when Williams was expelled from the association. On April 19, the company was officially notified of that fact. The company having taken no action pursuant to the notification, counsel for the association wrote the company on April 25, as follows:

"Having notified you by letter of April 19, 1949, of the action taken by the Kingston Mutual Association in the case of Mr. Frank Williams, I now wish to direct your attention to Article II, Paragraph 4, of the Labor Agreement presently in effect between the Kingston Mutual Association and the Kingston Cake Co., Inc., and request that you take appropriate steps in line therewith."

On April 26 counsel for the company answered in the following language:

"* * * I am of the opinion that Kingston Cake Company cannot take any action under Article II, paragraph 4 of the agreement between it and the Union, unless the membership of Mr. Williams is terminated for failure to tender periodic dues and initiation fees required by the Association."

On April 29 counsel for the association replied:

"I have your letter of April 26, 1949, and with reference thereto, I wish to advise that in addition to the failure of Mr. Williams to sign and execute a non-communist affidavit, as required under the Labor Management Relations Act of 1947, he also failed to tender or pay the nominal dues as required for membership in the Kingston Mutual Association for the month of March, 1949.

"It is the belief of the officers of the Kingston Mutual Association that by his failure to pay or tender the periodic dues, his membership in the association was terminated, and therefore the employer is required under the terms of the labor agreement presently in effect between the Kingston Mutual Association and the Kingston Cake Company, Inc., to dismiss the said employee, Franklin Williams, from his employment with the Kingston Cake Company, Inc. * * *"

On May 9, Williams was called into the company office and was handed the following letter:

"We regret to inform you that we are obliged to terminate your employment effective at the close of work today for the following reasons:

"1. We are informed that your membership in the Kingston Mutual Association has been terminated for your failure to sign a non-communist affidavit in connection with recent proceedings before the National Labor Relations Board, and your failure to pay or tender the periodic dues required by it. Under our agreement with the Kingston Mutual Association we are required, therefore, to sever your employment at once.

"2. Apart from your membership in the Association, your failure to sign the non-communist affidavit has caused considerable distress among the employees of the Company, and has been a source of so much agitation that the normal harmonious relations existing among them has been affected. Under such circumstances, we feel that you will find employment elsewhere happier. * * *"

The trial examiner and the board found that the company had discharged Williams at the association's behest because of his nonmembership in the association. The discharge was on May 9, and formal certification of the union-shop election did not occur until May 16. Therefore, the trial examiner and the board concluded that the company had violated Section 8(a) (3) and (1)⁴ of the Act by discharging Williams in reliance on a union-shop clause one week before that clause became formally valid. The same facts formed the basis of the conclusion that the association had coerced the company to discharge Williams, in violation of Section 8(b) (2) and (1)(A).⁵ The board, however, deemed it unnecessary to pass upon the trial examiner's further finding "that Williams' alleged dues delinquency could not have been the basis for the Union's demand on the Company that he be discharged and, further, the Company was aware of this fact at the time."

This was the state of the record when the case came here for the first time. Unwilling to predicate enforcement upon the technical prematurity of the discharge, we remanded the case so that the board could pass upon the trial examiner's finding that the alleged dues delinquency was not the real cause of the union's demand that Williams be discharged and that the company knew that fact at the time. This finding would sustain a charge that the company and the association had violated Section 8(a) (3) (B)⁶ and (b) (2), respectively, regardless of whether or not they had acted one week too soon. Upon remand, the board agreed with the trial examiner on that point. Solicitous of our concern over the propriety of the exercise of its discretion, the board stated a third ground for its conclusion: Even if it be assumed that Williams' failure to tender the periodic dues had been the real cause of his expulsion from the association and consequent discharge by the company and even if he had been discharged after the board had formally certified the results of the election, the two respondents still would have been in violation because the discharge would have been based upon a failure to tender dues at a time when there was no duty to do so, that is, before formal certification of the validity of the union-shop...