NLRB v. Aclang, Inc.

• Decision Date: 12 September 1972
• Docket Number: No. 72-1266 Summary Calendar.,72-1266 Summary Calendar.
• Citation: 466 F.2d 558
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACLANG, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 558 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACLANG, INC., Respondent.

No. 72-1266 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 12, 1972.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., C. Woodrow Greene, Director, James W. Mast, Regional Atty., Lewis S. Harris, Asst. Regional Atty., John L. Hollis, Atty., Region 28, N.L.R.B., Albuquerque, N. M., Peter G. Nash, Gen. Counsel, N.L.R.B., for petitioner.

Norman N. Rosen, El Paso, Tex., for respondent.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

The National Labor Relations Board has petitioned for enforcement of its order that Aclang, Inc., a Vietnamese language school operating in Biggs Field, Texas, (1) cease and desist from unfair labor practices under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act with regard to two employees,¹ (2) hire and restore back pay to two employees allegedly refused employment because of the company's unfair practices, and (3) post appropriate notices. Finding the Board's factual determinations supported by the record and its conclusions of law correct, we enforce.

Aclang received a contract to teach Vietnamese to military personnel at Biggs Field, near El Paso, Texas. The firm that held the previous contract had signed a collective bargaining agreement with the Union of Language Teachers, American Federation of Teachers, Local 1949, A.F.L.-C.I.O. (hereafter, the union). Aclang recognized and negotiated with the union, resulting in a collective bargaining agreement between the two.

The union, belying its name, is divided along the lines of the immigration status of the members. Those teachers with secure visa status and no requirement that they retain a job to remain in the United States comprise one group. The second and dominant group consists of teachers with temporary visas that require retention of a job in order to remain in the United States. Nguyen Thi Ky-My was the leader of the minority "secure" faction, which was generally more forceful with management because of the nature of its status. The "insecure" faction was headed by the union's officers. In July of 1971, Ky-My went directly to Aclang to seek employment, bypassing the union. At a union meeting after that, several members spoke against Ky-My as "going against the interests of the union." Ky-My spoke in her own defense, and the meeting became personal and bitter. At another union meeting soon after that, several union members circulated a petition to expel Ky-My from the union, which petition gathered over 60 signatures but failed to pass. Aclang knew of the split within the union's membership, of Ky-My's position as "secure" faction spokeswoman, of the stormy union meetings involving Ky-My, and of the attempt to expel Ky-My from the union.

In August of 1971, following Ky-My's application to Aclang, the union made written application for teaching positions for Ky-My and several other union members. Ky-My made another personal inquiry regarding available positions in September and was told by Aclang's primary executive that there were no openings. Upon returning for another inquiry in October, Ky-My was told by that executive:

"I am not going to hire you because some teachers told me they would walk out on the job if I hired you."

Aclang advised the United States Department of Labor in a letter that it did not plan to hire Ky-My for essentially that reason, also asserting that Ky-My had an unpleasant personality as well.

At the hearings before the trial examiner and the Board, Aclang contended the Ky-My's allegedly abrasive personality was the primary reason for their refusal to hire her, but they acknowledged that potential discord emanating from the stormy union proceedings involving Ky-My played a role. The trial examiner and the Board found that Aclang

". . . refused to hire Miss Ky-My because of its apprehension of discord from other teachers who resented Miss Ky-My\'s conduct at the July 17 union meeting and because of the petition to expel Miss Ky-My from the Union."

Employers may, of course, hire and fire as they choose if they have sufficient lawful reason, which includes refusals to hire so-called "trouble-makers." See Metropolitan Life Ins. Co. v. N.L.R.B., 6 Cir. 1967, 371 F.2d 573; N.L.R.B. v. Corning Glass Works, 1 Cir. 1961, 293 F.2d 784; cf. N.L.R.B. v. Cosco Products Co., 5 Cir. 1960, 280 F.2d 905; N.L.R.B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 45, 57 S.Ct. 615, 81 L.Ed. 893. However, "trouble-making" obviously cannot be synonymous with lawful union activity. The trial examiner and the Board both found that Ky-My's actions at the union meeting in July of 1971 were the cause of her failure to be hired. Her union activities, however vociferous, are protected activity within the scope of the act. See sections 7, 8(b)(1), and 8(b)(2), 29 U.S.C.A. §§ 157, 158(b)(1), 158(b)(2):

"There seems to be no doubt that an employer who denies employment . . . because the applicant or employee has been expelled from a union for causes other than failure to tender dues and initiation fees or is otherwise in disfavor with the union because of activities protected by § 7, finds himself in violation of § 8(a)(1) and (3), even though he acts under the economic duress of a threatened work stoppage . . . citing cases."

N.L.R.B. v. Local 138, Operating Engineers (Zara Contracting Co.), 2 Cir. 1961, 293 F.2d 187, 197. If expulsion from a union for lawful Section 7 activity cannot provide justification for an employer's failure to hire, then certainly a heated intra-union argument and an attempted expulsion cannot provide any lawful justification for refusal to hire. Therefore, Aclang's refusal to hire Ky-My for the reasons found by the Board is a violation of Section 8(a)(1).

Whether Aclang also violated Section 8(a)(3) under this set of facts is a more difficult question. Two Circuits have held that unlawful company response to protected intra-union or employee activity, clearly violative of Section 8(a)(1), was not a violation of Section 8(a)(3) in the absence of more specific proof that the employer intended his actions to affect the status of the union and not simply the employee's right to engage in certain action within the union:

"With an undisputed entrenched union, we do not see how the overall effect of this discriminatory activity by the company could be to discourage `membership\' in the union, section 8(a)(3); it serves rather to deter the full and free exercise of employees\' rights, section 8(a)(1)."

N.L.R.B. v. Corning Glass Works, 1 Cir. 1961, 293 F.2d 784, 787. Accord N.L.R.B. v. J. I. Case Co., 8 Cir., 1952, 198 F.2d 919. The First Circuit was faced with a single "entrenched" union. Although the record indicates that there is but a single union in the instant case, we conclude that the Aclang union is far from "entrenched." The precarious status of the "insecure" visa-holders, who comprise the majority of and the officers of the union, clearly bifurcates and weakens the strength of the union in its bargaining with the company.

Even though we are faced with a slightly different set of facts than those before the First Circuit, we feel compelled to disagree with the law enunciated in N.L.R.B. v. Corning Glass, supra. We conclude instead that the employer's actions in the instant case constitute violations of Section 8(a)(3) as well as 8(a)(1).

The Supreme Court, in treating Sections 8(a)(3) and 8(b) (2)² as coterminous for purposes of defining actions that constitute unfair labor practices by both union and management, concluded that the phrase "membership in any labor organization" in Section 8(a)(3) includes

". . . discrimination to discourage participation in union activities as well as to discourage adhesion to union membership. Similar principles govern the interpretation of union membership where the encouragement is alleged. The policy of the Act is to insulate employees\' jobs from their organizational rights. Thus §§ 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood."

Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., 1953, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455, 477. And it is "participation in union activities" and insulation of "employees" jobs from their organizational rights, as defined by Section 7, that Section 8(a)(1) also endeavors to protect. Radio Officers defines "membership" as "membership in good standing." See N.L.R.B. v. Radio Officers' Union, 2 Cir. 1952, 196 F.2d 960, aff'd, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455. We find ourselves in agreement with the Second Circuit regarding the proper interpretation of Section 8(a)(3):

"The denial of a promotion to an employee because he has charges pending against him in the union is a discrimination designed to encourage his membership in good standing in the union. . . ."

N.L.R.B. v. Bell Aircraft Corp., 2 Cir. 1953, 206 F.2d 235, 238. Likewise, Aclang's refusal to hire Ky-My was an effort "to encourage . . . membership in good standing, Radio Officers' Union v. N.L.R.B., supra in any labor organization," therefore violative of Section 8(a)(3). Accord N.L.R.B. v. Imparato Stevedoring Corp., 3 Cir. 1957, 250 F.2d 297; cf. N.L.R.B. v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; N.L.R.B. v. Robinson, 6 Cir. 1958, 251 F.2d 639; N.L.R.B. v. Newton, 5 Cir. 1954, 214 F.2d 472.

Section 8(a)(3) imposes a duty upon management not to discourage or encourage union membership by its hiring procedures. And by "membership" we mean effective, not docile, membership. If the company were permitted to encourage union eunuchs, the basic purpose of the whole Act would be emasculated. Effective and...