National Labor Relations Board v. Gaynor News Co., Inc
197 F.2d 719
2d Cir.
1952
Check Treatment

*3 charges six amended after the A. Findling, David P. George Bott, —filed J. “relate months’ limitation Reel, Somers, U. Frederick —which Norman precisely” back” or “define more Schwartz, C., Louis Washington, D. and original charges enumerated within the and Paterson, petitioner. J., for N. timely charge. “relating back” doc Bandler, Kass, Haas & Kass and Julius liberally purpose for this has been trine City, respondent. all of New York for leeway give wide construed Elias, City (Ste- Vladeck York New prosecuting offenses unearthed Horowitz, phen Vladeck and Milton New C. machinery, investigatory set motion City, counsel), Newspaper & York Kobritz, original charge. N. B. L. R. Mail Deliverers’ Union of New York. 8, 14-16; Cusano v. N. L. HAND, Before AUGUSTUS N. B., 903-904; 898, R. N. L. FRANK, Judges. and CHASE Circuit Kingston Co., Cir., B.R. Coke 191 F. 567; 563, 2d Kansas N. R. Mill. Co. v. L. FRANK, Judge. B., 413, gen Thus a 415. has employer-re- The Board found allegation original complaint eral in the spondent guilty violating Sections employees had interfered (2) (1) (3), and National Labor Relations in the their exercise of 29 U.S.C.A. § § Act, by (1) 158(a) (1-3), U.S.C.A. rights by and restraining coercing § retroactively paying them, wage increases and va- discriminating regard and hire only, refusing bargain cation benefits union members tenure good faith, subsequently (2) enforcing an agreeing to was than six —more shop union first after alleged contract in without months the date of the viola major- allege discharges certification that tion—amended obtaining par employees ity legitimate ticular had authorized union and shop strike activities. Kansas agreement in a union Co. N. Milling election. B., Cir., substantially R. admits all the facts L. violations, but, of both grounds, on several enlarged com We feel repudiates defends its actions “relating plaint justified can be here on the sequences. theory in so far as the additional back” all, says, 10(b) treatment are first of victims 1. It Act, prohibits violation and the 160(b) 29 U.S.C.A. concerned. Here it remainded same as refusing constituting retroactive facts prosecution charge; only anyone original the number in the benefits to against charges. discriminated original filed This altered. who first those certainly prejudice could not charge later amended—more than six This addition employer’s preparation of his charged in- months after violations —to exclusively from fath- exactly passing be- membership him as he was mislead to what however, signifi- Re- ing charged is, er to son. There with. Cf. L. R. N. Newspaper Delivery, Inc., 187 cant distinction between that case liable Edison v. one. discrimination resulted 550 n. Consolidated There entirely B., le- N. what the L. R. court considered the asking gal minority ad- action of the The same true of the union special only. allegation complaint ditional final benefits for its members previously pretense representing categorized action as a vio- made no1 majority ex- lation of (1) (3) constituted al- or of §§ *4 plant. so a The (2). agent violation of This was a clusive in the 8(a) bargaining § change legal only, employees, in theory in the other non-union reasoned not Court, Cusano quite charged. nature of the offense were able elect their own to B., N. L. R. to 3 190 903. As and ask benefits. for similar charge of illegality represented the 1948 Not so concerning here. The union here contract, that, long so that con- the majority of and was ex- force, actually illegal, tract continued in bargaining agent plant. clusive for the Ac- continuing cordingly, betray offense was committed could not trust of by employer. members, by spe- Since the contract was bargaining non-union filing, still force at the time the six only, of cial to benefits thus union-members 10(b) months’ limitation of had leaving the non-union members with no § operate. Superior begun even to equalizing See means of the situation. B., Cir., Engraving Co. v. N. R. L. True, the Third in the Re B., Cir., F.2d 783, 790; L. R. Katz v. N. that, say went on to even assum liable case complaint was, then, 196 F.2d 411. The discrimination, up it was to ing respects all valid. prove Board to that this discrimination had purpose encouraging and effect union brings This us to the substance membership. cases, including one Several complaint. employer The admits own, Associates, of our N. L. R. v. Air B. wage union in giving members retroactive 586, 592, 121 F.2d were cited there to deny creases vacation benefits while interpretation support (3). § claims, ing them to non-union members. It explanation But see our that in N. case however, such action that had neither the L. Co., R. B. v. Service Cities Oil purpose required by nor the effect Board, 937. The on the oth (3), e., membership encourage i. to hand, Republic er here Corp. cites Aviation organization; that failed B., 793, 800, L. R. N. effect, purpose that, prove that proposition that therefore, action cannot be sanctioned. proof no statistical of an actual “encour complainant, original it is ar aging” effect membership on union need be already unsuccessfully had done gued, by shown the discriminatory where conduct union; everything he enter this could.to encourage its nature “tends to or discour membership application pending was his age” membership. union See also N. L. R. violation; at the time of the nothing Sons, B. Engelhorn John amount further could do would 553, 557; N. L. R. B. v. Illinois Tool membership. “encouragement” of that Works, Cir., 811, 814; N. L. R. heavily on L. relies N. B. v. R. Ford, Cir., Newspaper Delivery, Inc., supra. Reliable requests acceding' to the Our' own view comes to this: There an Discriminatory conduct, prac bargaining on mem such as minority inherently basis, here, union members dis ticed conducive to in bers-only gave membership. non-union union criminatory advantages over creased this re spect, can be little doubt held that dis that it “en members. membership, necessary courages” increasing not have could crimination workers membership the number of who would encouraging union like to effect one, their join quantum desire. union was a closed It because and/or general union, for violation of the anti-discrimination may be reasons well purpose own, 8(3). laid down in old members rule not want new at closed-shop proviso permit employer’s and will time violations in- unifying thought what then to be a applicants. reject the fact remains But relations, e., one union been, in labor i. applicants fluence rejected these supported by all representing and be, “encouraged,” by and will continue to employer. No such bargaining with one benefits, in their desire justification rational for discrimination membership. backlog desire This working exists; conditions may well, argues, as the result .effect indisputably dis- kind discrimination action to break non-members to “seek cordant, divisive, conflict conducive membership by any one of down barriers feeling plant. bad We think steps, bribery ranging a number of meant, Congress by implication never legal politics action.” A union’s internal otherwise, patently allow such static; changes no means in union are policy in labor-strife-provoking fair and If entrance rules at time. industries under its control. down, among and when barriers are let *5 applicants the and will new now successful point we 3. The last of substance surely large groups almost workers be of alleged must consider viola concerns the previously employer’s “encouraged” the stemming of (1) (2) tions from (3) do not discrimination. believe We the 1948 contract which contained a union that, union-encouraging if the effect of dis- security time, At no such clause. criminatory felt imme- treatment is not ma clause could be executed unless the diately, employer to the must be allowed jority employees of in a Board-conducted escape altogether. If is a reasonable Here, union-shop it. election authorized years likelihood that the felt effects be no The contract such election was held. later, interpretation then a reasonable of the reprinted “saving did contain a clause” in * employer Act demands that be * * the deemed any margin1 that, “should the — extent, a To find our- violator. this we provision agreement of this be conflict selves in disagreement with the Reliable regulation with federal or law then state or do and hesitate hold the ac- not to provision only in effect such shall continue (2) tion here (1) violative of both § permitted.” to the extent The effect (3). clause, however, noted, a as the Board such application to was not defer employer makes additional union-security provision only post to argument, speedily —and which we feeble— pone legality “the of its future issue reject, “closed-shop” proviso based proper tribunal.” Act, determination some Wagner 8(3), to the in effect at the B. Red Very recently, in N. L. R. Star proviso time of these That al violations. Lines, Cir., Express we held lowed an to with a union “saving anything a similar clause” —if require employment as a condition of “to one, providing provi more cautious membership a Since therein”. legality under questionable legal in sions hiring firing were thus a closed Labor-Management Act employer, amendments to shop, says the a lesser discrimi legal— until held e., into effect payment go should not nation —i. retroactive benefits, prevent agreement suffice to would not wages, vacation etc.—was also le practice. constituting an unfair labor statutory well as from gal. Reason as text dis employee specific an cannot proviso excep reason was that be Our agree. The was a validity predict the or invalid- expected to what would otherwise a tion knowledge provision shall and belief continue best then ef- 1. “To the permitted. only parties extent this contract now contains no fect any agreement contrary provision of provision this to federal or event of which is regulations. inoperative, remaining Should, how thus provisions held law or state agreement shall, any provision agreement, ever, at never- this during life, theless, any remain in full force conflict and effect.” be in time regulation or or state law federal with ity contract, party particular proceeded, against clauses in whom the Board will compelled gains join through lifting any union where this of. con- feel total a union-security questionable va- action. clause tractual restraints on its exists, device here it a lidity hedging involved claims has entered into against employer which, possible upholding future new with the contract says, Only specific provision deferring all taint of illegality (cid:127)clause. abolished application tained union-security will one. clause the earlier This the pretend against illegal- deny, pass immunize the nor do contract ity. not, however, principles question on the do here. We same serve to void possible think union-security provisions danger here. of allowing some collective rela- bargaining union-security finding As a result of outweighs tions with this union the sub- provision illegal, the ordered the away stantial harm to them in taking enforcing cease desist from bargain- indefinite all collective any any other this or this contract or ing rights. We have therefore decided to any from recognizing (cid:127)other parts refuse to enforce those the Board’s any way until status ion’s prohibit order any which contractual re- duly By these in- certified the Board. lations between this or junctive provisions 1(b) (c) (d) and §§— any other union until such time as order—the 2(b) of Board’s Board gets considering around to mak- under rights lose all their 1948 contract ing a decision on this or other union’s benefits, hours, pre- wages, are etc.—and -— petition If, during for certification. ones. The enforcing vented new *6 interval, should do agree or solely lay illegality in this contract do illegally anything that would discrimin- prior approval union’s failure to secure against any employees ate other majority from a for the un- way portions remaining violate ion-security requirement clause—a since order, the Board is Board’s still free to by Congress abolished in 1951 burden- as prosecute employer for contempt. unnecessary. approval some and That can. Modified. Enforced as modified. date, no longer be secured at late nor this necessary is new it contract. part (concurring CHASE and dissent- ing in part). argues the entire Board (cid:127)contract must be voided and collective bar my I brothers that unfair gaining suspended, relations or otherwise practices labor found were by established permitted the union will “be to continue to the only evidence and differ with them enjoy strengthened that I status would enforce order as made virtue of The the contract.” As was said in Board. International says Machinists, etc., present Board also union’s Association of National position illegally Board, 72, 82, em Labor advanced Relations U.S. 83, 89, non “It ployer’s treatment of S.Ct. 85 L.Ed. is for the employees. Katz See etc. v. N. L. R. not the courts determine how prior practices may the rem effect supra. Nevertheless believe harshly edy expunged. here. The union be National out too Labor Relations works Greyhound Pennsylvania Lines, consideration of Board for has asked 571, 576, been S.Ct. petition certification and has U.S. National Labor refused, advice that no such action Relations Board with the Corp., Falk order has v. taken until the Board’s will be Indeed, complied Compliance L.Ed. 396.” fully with. remedy employer. itself is wrong Meanwhile because from the must (cid:127) consequently because the Board has not acted any other this or petition certification, union’s are in box and cannot employees, while .all the enforce practices through the unfair labor demands col which the any rights or part beneficiary employer, union is the sole remain in bargaining. lective withholding full my effect, brothers are to be such That seems enforcement. power of

justifiable interference with discretion its sound to exercise

the Board subscribe it. I cannot City, (W. Okl. Johnston, D. C. Oklahoma Tulsa, Okl., I. Daugherty, and D.

A. John- for brief), Okl., ston, City, on the Oklahoma appellants. City, Washington, Oklahoma

Paul L. Okl., appellee. PHILLIPS, Judge,

Before Chief HUXMAN, Judg- BRATTON and Circuit OAKES v. W. L. et al. ANDERSON es. CO. MFG. No. 4435. HUXMAN, Judge. Appeals States

United parties other While involved were Tenth Circuit. controversy court, action in the trial 23, 1952. June presented by appeal Fred between G.

Anderson, Harry House, M. and Patterson Company, corporation, Steel doing busi- together ness as Industrial Construction Company, Industrial, herein referred to as Company, Manufacturing L.W. Oakes herein referred to as Oakes. So ma- far as issues, briefly terial to the the facts bemay summarized follows: Industrial obtained housing a contract the construction *7 Norman, Oklahoma, project consisting apartment 244 identical units. Under con- Industrial, agreed tract with Oakes to fur- consisting nish listed items of fabricated closets, shelving, jambs, door and buffets installation each of the units for a $39,535.52. consideration of Oakes furnish- ed the material called con- $34,315.50 paid tract and was the con- price. tract Oakes claims in addition to the material called contract it $7,- furnished extra material of a value paid 590.96. It also sales taxes in the sum $839.99, admittedly which were Indus- obligations. acknowledged Industrial trial’s liability due under the balance taxes, sales tract and also for the so the dispute is one for item in these extras. questions are whether these items were and, so, whether Oakes furnished of the Oklahoma benefit Material- have the man’s Lien Law. O.S.A. 143.1

O.S.A. § piece land, per- “Any person shall, tract or who owner O.S.A. labor, material or furnish for the form or written contract oral under