National Labor Relations Board v. Radio Officers' Union of Commercial Telegraphers Union, AFL ( 1952 )

SWAN, Chief Judge.

This is a petition by the National Labor Relations Board for enforcement of its order issued April 18, 1951 against the respondent union, 93 N.L.R.B. No. 249. The order found that the union had engaged in certain unfair labor practices in violation of sections 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(b) (1) (A), (2), by causing the A. H. Bull Steamship Company to discriminate against William Christian Fowler, a ship’s radio operator and a member of the union, thereby causing Fowler to lose employment by the company on each of two occasions, namely, February 28, 1948 and April 26, 1948. It ordered the union to cease and desist from such unfair labor practices, and affirmatively, to give notice that it withdraws objection to Fowler’s employment by the company and to make Fowler wi*ole for any loss he may have suffered by reason of the union’s preventing his employment on the above mentioned two occasions.

The questions presented for decision are (1) whether the record supports the finding that the union refused Fowler “clearance” to work on the Bull Company’s ships; (2) whether such refusal was permitted by the terms of the contract between the Bull Company and the union; (3) whether the union’s purported suspension of Fowler’s union membership in February 1948 was valid; and (4) whether the facts as found establish a violation of sections 8(b) (1) (A) and 8(b) (2).

The Board accepted the facts as found by the trial examiner. We also accept them. In so far as there was any dispute as to the facts, the findings depend upon the credibility of witnesses, whom the trial examiner heard and saw. As we recently said in N. L. R. B. v. Chautauqua Hardware Corp., 2 Cir., 192 F.2d 492, 494, “When an issue turns upon the credibility of witnesses, the Examiner’s findings are especially entitled to be respected”, citing Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456. The record contains nothing which would justify holding the findings to be clearly erroneous; hence they are supported by “substantial evidence,” as the statute requires. 29 U.S.C.A. § 160(e).

Briefly, the facts found by the examiner were as follows: Fowler, a ship’s radio operator, joined the respondent union on July 1, 1942 and was a member in good standing in February and April, 1948. On February 24, Fowler received at his home in Miami, Florida, a telegram from the Bull Company, on whose ships he had previously worked, requesting him to “Proceed New York as soon as possible for position SS. Frances.” Kozel, also a member of the union, had served as radio officer on the last voyage of the Frances and was discharged by Mr. Frey, the company’s radio supervisor, on the termination of that voyage at New York. After Fowler arrived in New York in February 1948, the union refused to give him “clearance,” i.e. a written statement of “good standing” in the union. This was because Mr. Howe, the general secretary of the union, believed that Fowler had pushed Kozel out of his job, although in fact Fowler had had nothing to do with Kozel’s discharge. For lack of a “clearance” Fowler was not given employment on the Frances, and returned to his home in Florida. This was the February transaction.

On April 22, 1948 Fowler again came to New York and the next day informed Frey that he was available. He also talked with Howe who was willing to give him a job with other shipping lines but not with the Bull .Company. Howe told Fowler: “You will be given no clearance for any Bull Line ship. Frey has been talking too much to you down there and making a company stiff out of you. I am going to break it up right here and now.” Frey testified that on April 26 he asked Howe for a clearance for Fowler on the S.S. Evelyn which was refused. Another union member was given the job. This was the April transaction.

At the time of the transactions above described a collective bargaining agreement was in effect between the union and the company.¹ The respondent contends that the agreement provided for a “hiring hall,” the petitioner that it did not. If it was a hiring hall contract the union could select from among its members the one to be hired by the company; if it was not a hiring hall contract the privilege of initial selection was the company’s, subject only to the employee being a union member “in good standing.” The Board determined that the contract did not provide for a hiring hall. The correctness of this decision is the principal question before us. A majority of the court thinks it correct.

The pertinent provisions of the contract are printed in the margin.² By Section 1 the company agrees, when vacancies occur, “to select * * * members of the Union in good standing, when available, * * * provided such members are in the opinion of the Company qualified to fill such vacancies.” Section 3 provides that if no qualified member of the union is available, the company will, “before a non-member of the Union is hired” give the union an opportunity to furnish a radio officer with the license necessary for the position to be filled. Section 6 provides that the company “shall have the right of free selection” of its radio officers, and when a member of the union is “hired,” the company must “take appropriate measures,” to make sure that such member is “in good standing.” If he is in good standing, the union agrees to give “the necessary clearance” for the position to which the radio officer “has been assigned”; and, if he is not, the union must so notify the company in writing. These provisions plainly give the company the right to select the man it desires to hire, and require the union to grant “clearance” if the man the company wants is a member in good standing. Such procedure is not a “hiring hall” arrangement. Even if we regarded the contract as ambiguous, which we do not, the doubt must be resolved against the union. Hiring hall arrangements, like closed shop arrangements, ,are ¡an exception to the general provisions in section 29 U.S.C.A. § 158(a) against employer discrimination, and “one seeking to come within the exception must clearly comply with its terms.” N. L. R. B. v. Don Juan, Inc., 2 Cir., 178 F.2d 625, 627.

The union contends that, regardless of the terms of the contract, the uniform practice of the parties so modified them as to make the contract one for a hiring hall. The trial examiner found:

“Although the contract contained no reference to a hiring-hall arrangement, the companies generally requested the Respondent to furnish radio officers to fill vacancies. To meet these requests, the Respondent maintained a ‘shipping list’ of its unemployed members in the order of the termination of their last employment. When a request for a radio officer was received from a company, the Respondent offered the assignment and requisite clearance to ’ those of its unemployed members who were waiting for assignments in the Respondent’s office, in the order in which their names appeared on the ‘shipping list’ * * * While this appears to have been the general practice, Fred Howe, the Respondent’s secretary-treasurer, testified that on some few occasions, companies have asked that particular radio officers be assigned to them.. In some of these instances, the Respondent refused the requests; in other instances, the Respondent honored the requests although, as Howe put it, ‘Some of the members don’t think too much of that system.’ ”

Complaint is made that the union was restricted in its proof as to the practice of the parties under the contract. But we can find in the record no exclusion of proffered evidence which would have added anything material to that which was summerized in the above quoted finding. We agree with the Board that such practice did not effect a surrender of the company’s rights under the contract. In most instances the company may have found it more convenient to ask the union to send a man than to find one for itself, but a party to a contract does not lose clearly reserved rights merely by non-insistence upon them in every instance.³

The union contends that in any event the refusal to grant a clearance to Fowler in February cannot be made the basis of an unfair labor practice charge because Fowler was not then in good standing — an adequate reason under the contract for refusing clearance. Howe, the general secretary of the union, ruled that Fowler was not in good standing since he had “bumped” a fellow union man. The trial examiner and Board found that Howe had no authority to make such a ruling, and we agree. A member of the respondent could be suspended in two ways: by the'General Chairman with the consent of the General Committee or by the General Chairman alone, after first warning the member to correct his dereliction. Even if Howe was acting as General Chairman under Article 7, § 7 of the by-laws, he neither obtained the consent of the General Committee nor gave warning to Fowler before suspending him, and therefore the attempted suspension was invalid. Nor are we persuaded by the respondent’s argument that neither the Board nor this court can review a union officer’s interpretation of his own powers. Such a holding would permit rights guaranteed by the Act to be brushed aside by the artful drafting and interpretation of union constitutions and by-laws. Where those rights are concerned, there is as much reason to review the grounds for the suspension of a union member as to review an employer’s asserted reasons for discharging an employee.

We think it clear that the union violated section 8(b) (1) (A) of the Act, 29 U.S.C.A. § 158(b) (1) (A), by “coercing” Fowler “in the exercise of the rights guaranteed in section 7”. Among those rights is the freedom to refrain from taking part in the “concerted activities” of a union. The concerted activity in the case at bar was refusal to take employment with the company as a means of reprisal against it for discharging Kozel. Fowler’s privilege of refraining from concerted activities was limited only to the extent of requiring membership in a labor organization as a condition of employment. The attempt to suspend him from union membership and the refusal of a clearance were economic coercion in its most effective form. Cf. N. L. R. B. v. Newman, 2 Cir., 187 F.2d 488, enforcing 85 N.L.R.B. 725, 730. The union’s closed shop contract did not protect it because Fowler was in good standing as a member of the union. Before the union could deprive him of this status, it was obliged to adopt the disciplinary procedure provided in its constitution and by-laws. Consequently he was free to refrain from taking part in the union’s concerted activity. Cf. Union Starch & Refining Co. v. N. L. R. B., 7 Cir., 186 F.2d 1008, 1011, certiorari denied 342 U.S. 815, 72 S.Ct. 30; Colonie Fibre Co. v. N. L. R. B., 2 Cir., 163 F.2d 65, 68-70.

The refusal to grant Fowler clearance although he complied with the only condition of employment — union membership in good standing — was also a violation of section 8(b) (2) of the Act, 29 U.S.C.A. § 158(b) (2), by inducing a violation of section 8(a) (3), 29 U.S.C.A. § 158(a) (3). Refusal of clearance caused the company to discriminate against Fowler in regard to hire. Without the necessary clearance it could not accept him as an employee. The result was to encourage membership in the union. No threats or promises to the company were necessary. See International Brotherhood of Electrical Workers v. N. L. R. B., 2 Cir., 181 F.2d 34, 38, affirmed 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299. Whether the union’s motive was, as it argues, to enforce the contract provisions against discharging satisfactory radio officers such as Kozel, is immaterial, although its failure to invoke the grievance procedure of Article I, section 5 of the contract and its precipitate and invalid suspension of Fowler seem hardly consistent with such motive. And in the April transaction it refused to allow the company to employ him on any of its ships. Such conduct displayed to all non-members the union’s power and the strong measure it was prepared to take to protect union members. Cf. Colonie Fibre Co. v. N. L. R. B., 2 Cir., 163 F.2d 65, 68, 69.

The union assigns a number of other errors which we find unsubstantial. The amendment of the complaint to include the February incident was properly granted and respondent obtained a recess to prepare his case. Respondent also argues that Fowler could not seek the Board’s aid without first utilizing the grievance and review procedure in the contract and the union constitution and by-laws. But the Board here is asserting a public right, not Fowler’s personal right, and the Board’s power is not dependent on the availability of other means of adjustment. See § 10 (a) of the Act; National Labor Relations Board v. Newark Morning Ledger Co., 3 Cir., 120 F.2d 262, 268, 137 A.L.R. 849, certiorari denied 314 U.S. 693, 62 S.Ct. 363, 86 L.Ed. 554. Nor was there error in failing to join the company as a respondent in this proceeding. A finding that the union has violated § 8(b) (2) can be made without joining the employer and finding a § 8(a) (3) violation. See National Labor Relations Board v. Newspaper & Mail Deliverers’ Union, 2 Cir., 192 F.2d 654, 656; National Union of Marine Cooks and Stewards, C. I. O. (George C. Quinley), 92 N.L.R.B. 877. Nor do we find the Board’s back pay provision improper. The way is still open to determine, in the compliance proceedings the effect of Fowler’s refusal to work on other ships.

The petition for enforcement is granted.

1 . The agreement was signed on January 11, 1947 and was extended on August 16, 1947 for a period of one year. Consequently under section 102 of the Taft-Hartley Act, 61 Stat. 152, 29 U.S.C.A. § 158 note, section 8(3) of the Wagner Act, 29 U.S.C.A. § 158(3), was applicable to it.

“Article I — Employment

2 . “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.

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“Section 3. When a member of the Union in good standing qualified to fill the vacancy is not available, the Company will notify the Union twenty-four (24) ho'urs in advance before a non-member of the Union is hired, and give the Union an opportunity to furnish without causing a delay in the scheduled departure of the vessel a competent and reliable Radio Officer with the license necessary for the position to be filled.

* * * * jfc

“Section 5. Radio Officers may be • transferred from one vessel to another and nothing contained in this Agreement shall be construed as requiring the discharge of any presently employed Radio Officer who, in the opinion of the Company, is satisfactory, or to prevent the discharge of any Radio Officer who, in the opinion of the Company, is not satisfactory, provided, however, that if the Union feels 'that any discharge is discriminatory, it shall be dealt with as a grievance and provided further, that such discharge shall not interfere with or delay the dispatch of any vessel on her scheduled departure from any port.

“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.”

3 . Walter Kidde & Co. v. Walton-Viking Co., 8 Cir., 153 F.2d 988, 991-992, certiorari denied 329 U.S. 715, 67 S.Ct. 45, 91 L.Ed. 620; South Atlantic S. S. Co. v. N. L. R. B., 5 Cir., 116 F.2d 480, 482, certiorari denied 313 U.S. 582, 61 S.Ct. 1101, 85 L.Ed. 1538; Dant & Russell, Inc. v. Grays Harbor Exportation Co., 9 Cir., 106 F.2d 911, 912, 125 A.L.R. 1302; In re Chicago & E. I. Ry. Co., 7 Cir., 94 F.2d 296, 299.