Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.
KNOCH, J.: The National Labor Relations Board has petitioned this Court for enforcement of its order against Hribar Trucking, Inc., hereinafter called the "Company" (reported 143 NLRB No. 46, 1963 CCH NLRB 12,434).
The Board found that the Company had violated § 8(a)(3) and (1) of the National Labor Relations Act (29 USCA § 151, et seq .) in discharging its employee Milton Lee Frankwick because he was not a member of Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the "Union", with which the Company had a collective bargaining agreement in force during the times pertinent to this case.
The Board also adopted the Trial Examiner's finding that the Company was in violation of § 8(a)(1) of the Act by maintaining in effect an illegal union security agreement incorporated in the aforesaid contract with the Union.
The clause in question reads:
Article 1. Union Security Clause
It is understood and agreed by and between the parties hereto that as a condition of continued employment, all persons who are hereafter employed by the Employer in the unit which is the subject of this agreement shall make application for membership in the Union immediately upon commencement of the term of employment and become a member of the Union on or immediately after the thirtieth day following the beginning of their employment, and that the continued employment by the employer in said unit of persons who are already members in good standing of the Union shall be conditioned upon those persons continuing their payment of the periodic dues of the Union. The failure of any person to make application to and become a member of the Union within said period of time shall obligate the Employer, upon written notice from the Union to such effect and to the further effect that Union membership was available to such person on the same terms and conditions generally available to other members, to forthwith discharge such person. Further, the failure of any person to maintain his union membership in good standing by failure to pay the periodic dues of the Union shall, upon written notice to the Employer by the Union to such effect, obligate the Employer to discharge such person.
Another provision states:
It is agreed between the parties hereto that the terms and conditions of this agreement shall apply to all mechanics, truck drivers, helpers, yardmen and warehousemen in the employ of the Employer. * * *
It is further agreed that all trucks shall be driven by members of Teamsters and Chauffeurs Union Local No. 43 (unless sanctioned by the Local Officers.)
The objectionable phrases are emphasized.
The Board found, and we agree, that these provisions, as they now read, invade the 30-day grace period required by § 8(a)(3) of the Act. Because of this defect, the Board rejected the Company's contention, offered as an alternative defense, that the union security clause authorized the discharge of Mr. Frankwick.
The agreement does not require union membership as a condition of employment, but improperly requires application for membership on commencement of employment. It meets the requirement of § 8(a)(3) by not invading ...