Colonie Fibre Co. v. National Labor Relations Board

Second Circuit

Colonie Fibre Co. v. National Labor Relations Board

163 F.2d 65, 20 L.R.R.M. (BNA) 2399, 1947 U.S. App. LEXIS 2988

CourtCourt of Appeals for the Second Circuit

DecidedJuly 14, 1947

Docket193, Docket 20341

StatusPublished

Cited by28 cases

This text of 163 F.2d 65 (Colonie Fibre Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colonie Fibre Co. v. National Labor Relations Board, 163 F.2d 65, 20 L.R.R.M. (BNA) 2399, 1947 U.S. App. LEXIS 2988 (2d Cir. 1947).

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Opinions

FRANK, Circuit Judge.

The legal effect of the fact that the discharges were perhaps made in part because of “dual unionship” we need not consider, since the Board did not rest its decision on that ground, but on the sole ground that the discharges were based on the maintenance-of-membership provision of the agreement of May 23, 1945. The Board concluded, and the evidence amply supports its conclusion, that no agreement existed between the A.F. of L. union and the company from March 14, 1945, to May 23, 1945. On that foundation, and in the light of the evidence of the conduct of the union and the company, the Board construed the maintenance-of-membership provision to mean this: As a condition of further employment, an employee who was a member of the union 15 days after August 28, 1944, must have maintained his membership in the union for a period starting eight and a half months before May 23, 1945.

It might be argued that the agreement could be interpreted thus: One who was a union member either fifteen days after August 28, 1944, or thereafter, and who later ceased to be, must become a union member shortly after the execution of the new agreement (i. e., May 23, 19451 and remain such for the life of that agreement. Such a provision would be less onerous than the conventional and valid closed-shop clause. But the company does not contend for such a construction. In its brief, it says that the agreement required “continued membership by those who once voluntarily joined.” Moreover, we think that the conduct of the union and the company renders not unreasonable the Board’s interpretation. We refer, to these facts: (1) The union’s demand for the discharges was first made on the very day the new agreement was executed. (2) Referred at that time to the company’s lawyer, the union, about a week later, demanded the discharges pursuant to the maintenance-of-membership clause; the lawyer then informed the union that it would comply with that request if given evidence that these men were members of the union “prior to [70]*70the execution” of the new contract, and that the -union, after a hearing, “voted that they were no longer members in good standing.” (3) Subsequently, Blais was notified by the union that it would press for his discharge if, after a union hearing on June 10, 1945, the union found him guilty of the charge of “failure to maintain dues payments for an extended period of time.” (4) On June 11, the union wrote the company that it had decided that Blais was no longer a member of the union in good standing “and should be removed from the employ” of the company “in accordance with the present union agreement and its provisions regarding these employees of the company who were members in good standing of the Union fifteen .days after August 28, 1944.” On June 18, the union wrote the company a substantially similar letter concerning Blair. (5) The company discharged Blais and Blair on June 12 and June 20, respectively.

We think the evidence sufficiently supports the conclusion that these discharges were knowingly made by the company on the basis of the retroactive feature of the maintenance-of-membership provision. We agree with the Board that such a provision is not within § 8(3) of the Act. Wallace Corp. v. N.L.R.B., 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; N.L.R.B. v. American White Cross Laboratories, Inc., 2 Cir., 160 F.2d 75.⁵

Before the Board’s examiner, Blais testified that he did not wish to be reinstated. Accordingly, there should be stricken from the order, and from the notice to be posted, the requirement that the company offer him reinstatement. The order and the notice, however, may state that this offer would have been required if he had not stated that he would not accept it. With these modifications, we shall grant enforcement of the order.

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FRANK, Circuit Judge.

The legal effect of the fact that the discharges were perhaps made in part because of “dual unionship” we need not consider, since the Board did not rest its decision on that ground, but on the sole ground that the discharges were based on the maintenance-of-membership provision of the agreement of May 23, 1945. The Board concluded, and the evidence amply supports its conclusion, that no agreement existed between the A.F. of L. union and the company from March 14, 1945, to May 23, 1945. On that foundation, and in the light of the evidence of the conduct of the union and the company, the Board construed the maintenance-of-membership provision to mean this: As a condition of further employment, an employee who was a member of the union 15 days after August 28, 1944, must have maintained his membership in the union for a period starting eight and a half months before May 23, 1945.

It might be argued that the agreement could be interpreted thus: One who was a union member either fifteen days after August 28, 1944, or thereafter, and who later ceased to be, must become a union member shortly after the execution of the new agreement (i. e., May 23, 19451 and remain such for the life of that agreement. Such a provision would be less onerous than the conventional and valid closed-shop clause. But the company does not contend for such a construction. In its brief, it says that the agreement required “continued membership by those who once voluntarily joined.” Moreover, we think that the conduct of the union and the company renders not unreasonable the Board’s interpretation. We refer, to these facts: (1) The union’s demand for the discharges was first made on the very day the new agreement was executed. (2) Referred at that time to the company’s lawyer, the union, about a week later, demanded the discharges pursuant to the maintenance-of-membership clause; the lawyer then informed the union that it would comply with that request if given evidence that these men were members of the union “prior to [70]*70the execution” of the new contract, and that the -union, after a hearing, “voted that they were no longer members in good standing.” (3) Subsequently, Blais was notified by the union that it would press for his discharge if, after a union hearing on June 10, 1945, the union found him guilty of the charge of “failure to maintain dues payments for an extended period of time.” (4) On June 11, the union wrote the company that it had decided that Blais was no longer a member of the union in good standing “and should be removed from the employ” of the company “in accordance with the present union agreement and its provisions regarding these employees of the company who were members in good standing of the Union fifteen .days after August 28, 1944.” On June 18, the union wrote the company a substantially similar letter concerning Blair. (5) The company discharged Blais and Blair on June 12 and June 20, respectively.

We think the evidence sufficiently supports the conclusion that these discharges were knowingly made by the company on the basis of the retroactive feature of the maintenance-of-membership provision. We agree with the Board that such a provision is not within § 8(3) of the Act. Wallace Corp. v. N.L.R.B., 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; N.L.R.B. v. American White Cross Laboratories, Inc., 2 Cir., 160 F.2d 75.⁵

Before the Board’s examiner, Blais testified that he did not wish to be reinstated. Accordingly, there should be stricken from the order, and from the notice to be posted, the requirement that the company offer him reinstatement. The order and the notice, however, may state that this offer would have been required if he had not stated that he would not accept it. With these modifications, we shall grant enforcement of the order.

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163 F.2d 65, 20 L.R.R.M. (BNA) 2399, 1947 U.S. App. LEXIS 2988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colonie-fibre-co-v-national-labor-relations-board-ca2-1947.

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