NLRB v. Revere Metal Art Co.

• Decision Date: 06 May 1960
• Docket Number: Docket 25868.,No. 242,242
• Citation: 280 F.2d 96
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REVERE METAL ART CO., Inc., and Amalgamated Union Local 5, UAW, Independent, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

280 F.2d 96 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REVERE METAL ART CO., Inc., and Amalgamated Union Local 5, UAW, Independent, Respondents.

No. 242, Docket 25868.

United States Court of Appeals Second Circuit.

Argued March 3, 1960.

Decided May 6, 1960.

On Petition for Rehearing June 16, 1960.

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Duane B. Beeson, Washington, D. C., (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Fred Landess, Washington, D.C., on the brief), for petitioner.

Jacob E. Hurwitz, New York City, for respondent Union.

Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order, 123 N.L.R.B. No. 16 (1959), finding that Revere Metal Art Co., Inc. and Amalgamated Union, Local 5, UAW, with which Revere had entered into a union security agreement, had engaged in unfair labor practices in violation of §§ 8(a) (1), (2) and (3) and 8(b) (1) (A) and (2) of the Labor Management Relations Act, 29 U.S.C.A. § 158. The order required cessation of recognition of the union and of performance of the collective bargaining agreement unless and until the union had demonstrated its majority status through a Board-conducted election. It directed the company and the union, jointly and severally, to reimburse employees for any initiation fees, dues or other monies paid or checked off as a condition of employment pursuant to the agreement. And it also forbade the company and the union from "entering into, maintaining, renewing, or enforcing any agreement * * * which provides for obligations to the Union on the part of employees other than the payment of initiation fees and dues as a condition of employment, or which grants the Union exclusive recognition or which requires employees to join, or maintain their membership in the Union as a condition of employment, unless such agreement which grants exclusive recognition or requires membership has been authorized as provided in Section 8(a) (3) of the Act."¹

The company does not oppose enforcement; the union does. We hold the Board was warranted in finding that the employer and the union had engaged in unfair labor practices. We sustain also the remedies imposed in the order, including the reimbursement of initiation fees and dues, save only the prohibition of any new union security agreement that provides obligations by employees to the union other than payment of dues and initiation fees as a condition of employment. As to this we think the order went beyond the powers granted the Board by Congress.

Revere has its principal office and place of business in New York City where it is engaged in the manufacture and interstate sale and distribution of pen parts. In the summer of 1956 the union began a campaign among Revere's employees, and organizational picketing began. By August the campaign was adversely affecting production. Following the alleged discriminatory discharge of an employee in mid-August, the picket line declared the company unfair, and Revere was cut off from essential supplies and services.

At the end of August, on instructions from the president of the company, counsel for Revere arranged for a meeting to be held with the union on September 10 to negotiate a collective bargaining agreement. The discharged employee returned to work and the picketing ceased. At this time Revere had 58 employees in the unit bargained for with the union. It made no investigation to determine whether the union represented a majority. The president was satisfied with the union organizer's having "shuffled," "flashed" or "flipped" in his presence some 27 to 29 cards, the first few of which bore the names of persons recognized as employees, and with the statement of the plant foreman "that he was inclined to believe that the union probably had a majority." No check was made against payroll or other records. Indeed it is not even clear the company knew whether the cards were signed at all, save the first few. At the hearing only 18 cards signed prior to September 1 were produced.

Negotiations for a union contract continued during the fall. The union organizer came to the plant in order to get additional cards signed. The plant foreman persuaded the organizer to leave the cards with him. The president told the foreman to have the cards signed but not to turn them over to the union organizer. On October 24 the foreman obtained signatures to 24 cards, about a third of these being duplicates of cards already signed. He accomplished this by presenting the cards to employees who were sent down to him "a couple at a time to get their checks and sign the cards." The foreman admitted that one worker was told that "he had to join the union or he would be fired. As far as I knew, that is what the procedure was." An employee testified the foreman gave him a card and said "you have to sign and give it back to me."

An agreement wherein Revere recognized Local 5 as exclusive bargaining representative of the employees in the unit was executed on November 13. This contained a clause requiring all employees to become members of the union within 30 days after the date of the agreement or, in the case of new employees, after the date of their employment and thereafter to continue to remain members of the union in good standing as a condition of employment. The constitution and by-laws of the union have numerous requirements for remaining a member in good standing other than the payment of initiation fees and dues. Fines may be levied by the executive board on any member found guilty of violating the constitution, by-laws or union rules. A member is required to leave the job immediately when ordered out on strike and to aid and picket when so directed and is forbidden to seek redress in any court before first seeking it through union channels. Violation of any of these obligations is expressly subject to such penalty, by way of fine, suspension or expulsion, as the executive board may direct. Assessments and fines must be paid before regular dues can be accepted.

After charges by an employee, complaint and hearing, the Board's trial examiner concluded that the company had violated § 8(a) (1), (2) and (3) and that the union had violated § 8(b) (1) (A) and (2) of the Act. On exceptions taken by the union, the Board affirmed and entered the order previously described.

The evidence clearly warranted the finding that a majority of the employees had not authorized the union to represent them, either when the company began negotiations with the union in September or when it signed the agreement granting exclusive recognition on November 13. At most 18 of the 58 employees had signed authorizations prior to September, and the additional signatures obtained by the plant foreman in October cannot be counted since these resulted from action forbidden the employer by § 8(a) (1) and (2) and the union by § 8(b) (1) (A). We need not determine whether, as urged by the Board and disputed by the union, these sections condemn the mere fact of the grant of exclusive recognition to and the receipt of such recognition by a union which had not been authorized by a majority, although we see the force of the Board's argument and the Fifth Circuit regards the proposition as "well settled," Dixie Bedding Manufacturing Co. v. N. L. R. B., 5 Cir., 268 F.2d 901, 905. Cf. N. L. R. B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710; N. L. R. B. v. Local 294, International Brotherhood of Teamsters, etc., 2 Cir., 279 F.2d 83. Here the evidence that the employees were summoned to the plant foreman's office, were there presented with cards authorizing union check-off when being given their paychecks, and were told they had to sign, showed coercion in the most literal sense. The Board was likewise justified in finding that the execution of an agreement with a union security clause was an unfair labor practice by the employer under § 8(a) (3) and by the labor organization under § 8 (b) (2). Such an agreement is permitted, inter alia, only when the labor organization is "not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice" and when it "is the representative of the employees as provided in § 9 (a)," and § 9(a) requires that the representative be "designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes." The agreement here failed on both counts. N. L. R. B. v. John Engelhorn & Sons, 3 Cir., 1943, 134 F.2d 553.

Since the union had thus been unlawfully imposed as exclusive bargaining agent upon the employees and the union security clause was unlawful in its inception, it was proper for the Board to strike down the agreement and to require that the union desist from representing the employees and to prohibit any further union security agreement until the union had demonstrated its majority status in a Board-conducted election.

We likewise decline to interfere with the Board's direction that the employer and the union jointly and severally reimburse the employees for initiation fees, dues or other monies paid or checked off as a condition of the employment pursuant to the union security agreement.² This Court said in N. L. R. B. v. Adhesive Products Corp., 2 Cir., 1958, 258 F.2d 403, 409, "The validity of reimbursement orders necessarily depends upon the peculiar circumstances of each particular case." While we annulled similar reimbursement orders in Morrison-Knudsen Co. v. N. L. R. B., 2 Cir., 275 F.2d 914 and Building Material Teamsters Local 282 v. N. L. R. B., 2 Cir., 275 F.2d 909, 912, the circumstances there were quite different from the instant case. Neither of those cases related to a union imposed on employees in violation of §§ 8(a) (1) and (2) and 8(b) (...