6

347 U. S. 17

7

No. 7 (hereinafter referred to as Gaynor) with which decisions of the First and Ninth Circuits accord, that such employee encouragement or discouragement may be inferred from the nature of the discrimination. (See Part III, p. 48, infra.) In reaching its decision in Gaynor, the Second Circuit also rejected the contention, which contention is supported by many decisions of the Courts of Appeals, that there can be no violation of § 8 (a) (3) unless it is shown by specific evidence that the employer intended his discriminatory action to encourage or discourage union membership. The Second Circuit determined that the employer intended the natural result of his discriminatory action. (See Part II, p. 42, infra.) Moreover, Radio Officers and Teamsters present conflicting views by Courts of Appeals as to the scope of the phrase "membership in any labor organization" in § 8 (a) (3). The Eighth Circuit restricts this phrase to "adhesion to membership," i. e., joining or remaining on

24

a union's membership roster; the Second Circuit, on the other hand, interprets it to include obligations of membership, i. e., being a good union member. (See Part I, p. 39, infra.) Radio Officers also raises subsidiary questions regarding the interrelationship of § 8 (a) (3) with §8 (b) (2) of the Act which makes it an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection [8] (a) (3) . . . .” 10 (See Part IV, p. 52, infra.) These cases were argued last term, and, upon our order,11 reargued this term. They reached us in the following manner.1

12

Teamsters. Upon the basis of a charge filed by Frank Boston, a truck driver employed by Byers Transportation Company and a mem

Gaynor News Co., Inc. v. N. L. R. B., 197 F. 2d 719, certiorari granted, 345 U. S. 902. But cf. N. L. R. B. v. Air Associates, Inc., 121 F. 2d 586.

6 N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883.

7 N. L. R. B. v. Walt Disney Productions, Inc., 146 F. 2d 44.

8 See, e. g., N. L. R. B. v. Reliable Newspaper Delivery, Inc., 187 F. 2d 547; Wells, Inc. v. N. L. R. B., 162 F. 2d 457; N. L. R. B. v. Reynolds' International P. Co., 162 F. 2d 680; N. L. R. B. v. Draper Corp., 145 F. 2d 199; N. L. R. B. v. Air Associates, 121 F. 2d 586.

See also Union Starch & Refining Co. v. N. L. R. B., 186 F. 2d 1008; Colonie Fibre Co. v. N. L. R. B., 163 F. 2d 65; N. L. R. B. v. Walt Disney Productions, Inc., 146 F. 2d 44; Sperry Gyroscope Co., Inc. v. N. L. R. B., 129 F. 2d 922; Firestone Tire & Rubber Co., 93 N. L. R. B. 981.

10 29 U. S. C. (Supp. V) § 158 (b) (2):

"(b) It shall be an unfair labor practice for a labor organization or its agents

*

"(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; ...

11 345 U. S. 962.

12 Requisite engagement in commerce for purposes of the National Labor Relations Act is admitted in all three cases.

347 U. S. 17

ber of Local Union No. 41, International Brotherhood of Teamsters, A. F. L., the General Counsel of the National Labor Relations Board issued a complaint against the union alleging violation

25

of §§ 8 (b) (1) (A) 13 and 8 (b) (2) of the National Labor Relations Act by causing the company to discriminate against Boston by reducing his seniority standing because of Boston's delinquency in paying his union dues. A hearing was had before a trial examiner, whose intermediate report was largely adopted by the Board 1 with one member dissenting.

14

The Board found that the union, as exclusive bargaining representative of the teamsters in the company's employ, had in 1949 negotiated a collective-bargaining agreement with the company which governed working conditions on all over-the-road operations of the company.15 This agreement established a seniority system under which the union was to furnish periodically to the company a seniority list and provided that "any controversy over the seniority standing of any employee on this list shall be referred to the Union for settlement." Union security provisions of the agreement were not effective due to lack of the authorization then required by § 8 (a) (3) of the Act.16 The seniority list therefore included both union members and nonmembers. Each

26

new employee of the company, after a thirty-day trial period, was placed at the bottom of this list, and such employee would gradually advance in position as senior members were either removed from the list or reduced in their position on it. Position upon the seniority list governed the order of truck-driving assignments, the quality of such assignments, and the order of layoff.

The bylaws of Teamsters Local Union No. 41 provided that "any member, under contract, one month in arrears for dues shall forfeit all

29 U. S. C. (Supp. V) § 158 (b) (1) (A). This section makes it an unfair labor practice for a union "to restrain or coerce employees in the exercise of rights guaranteed in section 157 of this title." Section 157 provides: "Employees shall have the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3)."

14 94 N. L. R. B. 1494.

This agreement, known as the "Central States Area Over-the-Road Agreement," has been executed with employers by more than 300 locals of the Teamsters Union in 12 different states.

15 See the bracketed language in note 1, supra.

347 U. S. 17

seniority rights.. "17 A member's dues were payable on the first day of each month, and he was deemed "in arrears" for any month's dues on the second day of the following month. Boston did not pay his dues for June 1950, until July 5, 1950. When the union transmitted a new seniority list to the company on the following July 15, Boston, who had previously been eighteenth on the list, was reduced to fifty-fourth, the bottom position on the list. As a result of such reduction Boston was denied driving assignments he would otherwise have obtained and for which he would have received compensation. Upon these facts a majority of the Board found that the union had violated §§ 8 (b) (1) (A) and 8 (b) (2) of the Act. As to the former, the Board held that the union's reduction of Boston's seniority restrained and coerced him in the exercise of his right to refrain from assisting a labor organization guaranteed by § 7.18 The Board held that, "absent a valid contractual union security provision, Boston had the absolute protected right under the Act to determine how he would handle his union affairs without risking any impairment of his em

27

ployment rights and that the Union had no right at any time whether Boston was a member or not a member to make his employment status to any degree conditional upon the payment of dues. . . ." As to the latter, the Board concluded that the union had caused the company to discriminate against Boston and adapted the Trial Examiner's finding that "the normal effect of the discrimination against Boston was to encourage nonmembers to join the Union, as well as members to retain their good standing in the Union, a potent organization whose assistance is to be sought and whose opposition is to be avoided. The employer's conduct tended to encourage membership in the Union." Its discrimination against Boston had the further effect of enforcing rules prescribed by the Union, thereby strengthening the Union in its control over its members and its dealings with their employers and was thus calculated to encourage all members to retain their membership and good standing either through fear of the consequences of losing membership or seniority privileges or through hope of advantages in staying in. . . .”

17 "Section 45. Any member, under contract, one month in arrears for dues shall forfeit all seniority rights.

"(a) Clarification of the above paragraph: On the second day of the second month a member becomes in arrears with his dues."

18 See note 13, supra.

19 (Trial Examiner's Footnote.) If, as Respondent appears to suggest, its conduct discouraged membership in a labor organization, it could be argued that from the plain meaning of Section 8 (a) (3), a union would equally violate the Act by causing an employer to discriminate against an employee in order to rid itself of slow-paying or otherwise recalcitrant members.

347 U. S. 17

The Board entered an order requiring the union to cease and desist from the unfair labor practices found and from related conduct; to notify Boston and the company that the union withdraws its request for the reduction of Boston's seniority and that it requests the company to offer to restore Boston to his former status; to make Boston whole for any losses of pay resulting from the discrimination; and to post appropriate notices of compliance.

28

The Court of Appeals for the Eighth Circuit denied the Board's petition to enforce its order.20 The court held that "the evidence here abundantly supports the finding of the Board that the respondent caused or attempted to cause the employer to discriminate against Boston in regard to 'tenure . . . or condition of employment,'” but "discrimination alone is not sufficient" and "we can find no substantial evidence to support the conclusion that the discrimination . . . did or would encourage or discourage membership in any labor organization." This conclusion was reached because "the testimony of Boston . . . shows clearly that this act neither encouraged nor discouraged his adhesion to membership in the respondent union" 21 and because, assuming the effect of the discrimination on other employees was relevant, the court found no evidence to support a conclusion that such employees were so encouraged or discouraged. We granted the Board's petition for certiorari.22

Radio Officers. Upon the basis of a charge filed by William Christian Fowler, a member of The Radio Officers' Union of the Commercial Telegraphers Union, A. F. L., the General Counsel of the National Labor Relations Board issued a complaint against the union alleging violation of §§ 8 (b) (1) (A) and 8 (b) (2) of the Act by causing the A. H. Bull Steamship Company to discriminatorily refuse on two occasions to employ Fowler. No complaint was issued against the company because

29

Fowler filed no charge against it. Following the usual proceedings under the Act, a hearing was had before a trial examiner, whose findings, conclusions, and recommendations with certain additions were adopted by the Board.23

20 196 F. 2d 1.

In this connection, the court pointed out that Boston was a member of the union prior to the discrimination, and retained his status as a member thereafter and that Boston had testified that the discrimination neither encouraged nor discouraged him to remain in the union.

22344 U. S. 853.

93 N. L. R. B. 1523.

347 U. S. 17

The Board found that at the time the transactions giving rise to this case occurred the union had a collective-bargaining contract with a number of steamship concerns including the Bull Steamship Company covering the employment of radio officers on ships of the contracting companies. Pertinent provisions in this contract are:

"Section 1. The Company agrees when vacancies occur necessitating the employment of Radio Officers, to select such Radio Officers who are members of the Union in good standing, when available, on vessels covered by this Agreement, provided such members are in the opinion of the Company qualified to fill such vacancies.

"Section 6. The Company shall have the right of free selection of all its Radio Officers and when members of the Union are transferred, promoted, or hired the Company agrees to take appropriate measures to assure that such members are in good standing, and the Union agrees to grant all members of the Union in good standing the necessary 'clearance' for the position to which the Radio Officer has been assigned. If a member is not in good standing, the Union will so notify the Company in writing."

The union's contention that this contract provided for a hiring hall under which complete control over selection of radio officers to be hired by any company was given to the union was rejected by the Trial Examiner and by a majority of the Board. Such an agreement would have

30

But the Board

legalized the actions of the union in this case.24 concluded, primarily from the last sentence of § 6 of the contract, the the contract "was clear on its face and did not provide for any hiring hall arrangement" and that it therefore had not been improper for the Trial Examiner to exclude evidence that general, although not universal, practice had been for radio officers to be assigned to employers by the union.

The Board also found that: On February 24, 1948, the company telegraphed an offer of a job as radio officer on the company's ship S. S. Frances to Fowler, who had often previously been employed by the company; Fowler had notified the company that he would accept the job; the company then informed Kozel, the radio officer on the previous voyage of the ship, that he was being replaced by "a man with senior service in the company"; Fowler reported to

Such an agreement was permissible under § 8 (3) of the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 158 (3). The agreement in this case was signed on January 11, 1947, and was extended for a period of one year on August 16, 1947. Under $102 of the 1947 amendments to the National Labor Relations Act, 61 Stat. 152, acts performed under such agreement which would not have been unfair labor practices under § 8 (3) were not unfair practices under the amended act.