Red Star Exp. Lines of Auburn, Inc. v. National Labor Relations Board. National Labor Relations Board v. New York Employers Ass'n, Inc.

In the proceeding brought by the Red Star Express Lines of Auburn, Inc. (hereinafter called the Company) it petitioned this court to review and set aside so much of an order of the National Labor Relations Board as required the Company to replace its employee Richard Mullen in his former position of employment and to make him whole for any loss of pay he might have suffered. The Board held that Mullen had been discharged by the Company in violation of Section 8(a) (3) of the Taft-Hartley Law, 29 U.S.C.A. § 158(a) (3), because of his activities in opposition to the union1 with which the Company had a collective bargaining agreement. The company argues that Mullen was discharged because he refused to take a medical examination when directed to do so by one of its officials. However, the motive underlying the discharge was clearly a question of fact and, upon consideration of the record as a whole, we hold that the Board’s conclusion was justified. Mullen’s testimony as to the conversations he had with Weaver and Rowlands, the Company’s General and Sales Managers, respectively, established that the Company, shortly before the discharge, was seeking Mullen’s resignation in order to relieve itself of difficulties with Local 182 caused ■by Mullen’s activity in attempting to form a rival union. In the absence of any prior practice requiring sick employees to take medical examinations, the timing of the Company’s request that Mullen submit to an examination might naturally lead to the inference that the Company’s motive was not solicitude for Mullen’s health, but rather a desire to precipitate a situation which it thought would justify a discharge. We think that the Board could reasonably infer that Mullen’s refusal to take the examination, especially when he offered an affidavit as to his health from his own doctor, played no part in the Company’s decision to discharge him. In other words, there was substantial evidence to support the finding of the Board that Mullen was discharged because of his activities in opposition to the union.

Likewise, the finding of the Board that Mullen was an ordinary employee and not a supervisory employee within the meaning of Section 2(11) of the Act, 29 U.S.C.A. § 152(11), is amply supported by the record. The testimony disclosed that he had no authority to hire or fire other employees; that all managerial decisions other than the most menial were made for him and not by him; that his job as night superintendent was filled by other employees in his absence; and that any other employee with higher seniority could have had the job since it was posted for bidding under a practice whereby the employees were to bid on particular jobs according to their seniority. The fact that Mullen was designated by the title "superintendent” did not exclude him from protection under the Act unless he also possessed one or more of the incidents of that status which are set forth in Section 2(11). Accordingly, the petition of the Company to set aside the order of the Board is denied.

The second proceeding is a petition by the Board for enforcement of its order2 against the Company, Local 182, the New York State Employers’ Association, Inc. (hereinafter called Association), and the New York State Teamsters Council (hereinafter called the Council). The order directs those respondents to cease and desist from entering into or giving effect to the union security provisions of collective bargaining agreements which require employees to maintain their membership in a labor organization as a condition of employment, or from any form of interference with the rights granted employees under Section 7 of the Taft-Hartley Law, 29 U.S.C.A. § 157.

The Association is an organization of about sixty-eight motor carriers in Western and Central New York. One of its functions is the negotiation of uniform collective bargaining agreements with labor unions on behalf of its members. Since 1944 the Association and the Teamsters Council have maintained a master collective bargaining agreement covering the employees of the Association’s members, and the Company, which was a member of the Association, and Local 182 have had a similar agreement between themselves.3 The union security clauses of these agreements provided that the employer would hire only union men if available but if they were not available, could employ non-union men upon the condition that they become members of the union within twenty-four hours after employment. The 1944 agreements were renewed as between the Association and the Council and between the Company and the Union in 1946 and 1947. During the negotiations leading up to the renewal of the master agreement on July 1, 1948,4 the Council and the Association were unable to agree whether certain provisions of the 1944 contract were made illegal by the enactment of the Taft-Hartley Law. Accordingly, in a letter dated August 2, 1948, the Council and the Association agreed upon the following addendum to their collective bargaining contract:5

“As per our discussion between your State Committee and our State Committee as regards the recently passed Taft Hartley Law, pending clarification of the many phases of the Law that may effect [sic] one or more clauses in our 1944 contract, we hereby agree that all clauses that are affected by the law shall be considered null and void but it is understood that when and if such clauses are declared legal, they shall immediately become part of our statewide agreement and shall be considered in full force and effect.

“Consider this as part of the Master Stipulation that was signed between yg ^ **

It is urged that the addendum was sufficient to suspend the operation of the union-security provisions of the contract which, concedely, were illegal under the Taft-Hartley Law. 29 U.S.C.A. § 158(a)(3). We do not agree. The execution of a contract containing a forbidden union-security clause constitutes an unfair labor practice.6 This is so because the existence of such an agreement without more tends to encourage membership in a labor organization. The individual employee is forced to risk discharge if he defies the contract by refusing to become a member of the union. It is no answer to say that the Act gives him a remedy in the event that he is discharged. The Act requires that the employee shall have freedom of choice, and any form of interference with that choice is forbidden.7 The contract as modified by the addendum continued to be such an interference and constituted an unfair labor practice. For the question is not only whether under principles of contract law the addendum would contractually negative the illegal union security clauses, but whether it would have the effect of preventing the coercion that would otherwise follow from the renewal of the earlier agreements. The Board found it would not have such an effect “because it fails to specify which, if any, clauses were to be suspended.”8 In our opinion the Board was entitled to adopt this view as a matter of sound policy and reasonable interpretation. The vague language of the addendum would not help the ordinary employee to. understand that the union security clause was no longer binding. The parties themselves were unable to determine which parts of the contract were affected by the TaftHartley Act. Employees certainly could not be expected to understand the scope of such a proviso even if it had been communicated to them, as it was not. We, therefore, hold that the respondents were guilty of unfair labor practices as found by the Board.

The petition of the Board for the enforcement of its order is granted.