17

Opinion of the Court.

7

cuit, held that express proof that employer discrimination had the effect of encouraging or discouraging employees in their attitude toward union membership is an essential element to establish violation of this section. That holding conflicts with the holdings of the Second Circuit in No. 5 (hereinafter referred to as Radio Officers) and 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

8

3 Labor Board v. Reliable Newspaper Delivery, Inc., 187 F. 2d 547. See also Western Cartridge Co. v. Labor Board, 139 F. 2d 855.

Radio Officers' Union v. Labor Board, 196 F. 2d 960, certiorari granted, 344 U. S. 852.

5 Labor Board v. Gaynor News Co., Inc., 197 F. 2d 719, certiorari granted, 345 U. S. 902. But cf. Labor Board v. Air Associates, Inc., 121 F. 2d 586.

6 Labor Board v. Whitin Machine Works, 204 F. 2d 883.

Labor Board v. Walt Disney Productions, 146 F. 2d 44.

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

288037 0-54-7

Opinion of the Court.

347 U.S.

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) . (See Part IV, p. 52, infra.) These cases were argued last term, and, upon our order," reargued this term. They reached us in the following manner.'

12

99 10

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

See also Union Starch & Refining Co. v. Labor Board, 186 F. 2d 1008; Colonie Fibre Co. v. Labor Board, 163 F. 2d 65; Labor Board v. Walt Disney Productions, 146 F. 2d 44; Sperry Gyroscope Co., Inc. v. Labor Board, 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) of this section 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.

17

Opinion of the Court.

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.

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

13 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 (A) employees in the exercise of the rights guaranteed in section 157 of this title." Section 157 provides: "Employees shall have the right to selforganization, 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 158 (a) (3)."

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

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

16 See the bracketed language in note 1, supra.

Opinion of the Court.

347 U.S.

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.

99 17

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

17 "SEC. 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.

17

Opinion of the Court.

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 adopted 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.[19] 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 advantage in staying in. . . .”

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.

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."