Appeal from Decision of the National Labor Relations Board.
Cummings, Tone, Circuit Judges, and Charles E. Wyzanski, Jr., Senior District Judge.*fn* Wyzanski, Senior District Judge, dissenting.
The issue before us is the validity of a maintenance-of-membership provision in a collective bargaining agreement. The provision applies to employees who were union members immediately before the effective date of the agreement and employees who thereafter become union members. It does not apply to employees who were not union members immediately before the effective date or future employees. The National Labor Relations Board sustained the union's position that such a provision is lawful when the collective bargaining agreement becomes effective immediately on the expiration of a predecessor agreement containing a similar provision. The Board therefore held that the union had not committed an unfair labor practice under § 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(1)(A) and (2), by demanding that the employer discharge employees who, having resigned from the union effective upon the expiration of the old contract, ceased paying dues when the new contract became effective. We sustain the Board.
Since 1964 an uninterrupted series of collective bargaining agreements have been in force between the employer, Sunbeam Corporation's Appliance Division, and the union, Lodge No. 1129 and District No. 8 of the International Association of Machinists and Aerospace Workers. Each agreement has contained a maintenance of membership clause providing as follows:
"All employees who are members of the Union on [a given date], and those employees who may thereafter become members shall, during the life of this Agreement remain members of the Union, in good standing."
The 1964 agreement contained an escape clause establishing a period during which union members could resign from the union. The maintenance-of-membershp clause of that agreement applied only to employees who were members of the union on the day after the escape period ended. The escape clause was omitted from subsequent contracts, but the maintenance-of-membership clause in the 1970 contract, which immediately preceded the contract in issue here, applied only to employees who were union members one week after the effective date of the contract. The 1970 contract terminated and the 1973 contract now before us became effective at midnight on January 12, 1973. The maintenance-of-membership clause in the 1973 contract applied to "all employees who are members of the Union on January 12, 1973."
Petitioners are Sunbeam Appliance Division employees who resigned their union memberships before the expiration of the 1970 contract but continued to pay dues until the contract expired. In accordance with petitioners' view of the facts, we treat the resignations as effective upon the expiration of that contract at midnight on January 12, 1973.*fn1 Following notification by the union that it would invoke its rights under the maintenance-of-membership clause if petitioners did not pay their dues, they filed unfair labor practice charges before the Board, which were dismissed by the Board's Chicago Regional Director but reinstated by the General Counsel's Office of Appeals. The employer has refused, pending the outcome of this proceeding, the union's request that petitioners' employment be terminated.
After a hearing,*fn2 the Administrative Law Judge ordered that the dispute be submitted to arbitration pursuant to the collective bargaining agreement between the union and the company. On review, the Board ruled out arbitration because neither party to the arbitration would be supporting petitioners' position. Proceeding to the merits, the Board ordered the complaint dismissed, stating:
"The Board has long held that where, as here, there is no time lapse between successive collective-bargaining agreements and there are closely similar union-security clauses, of which maintenance of membership is one form, the union-security clauses have continuity and the new contract, at least as to union security, is to be treated as a continuation of the old contract. International Union, United Automobile, Aerospace, Agricultural Implement Workers of America (UAW), AFL-CIO (John I. Paulding, Inc.), 142 NLRB 296, 301 (1963). This principle was recently affirmed in The Newspaper Guild of Brockton, AFL-CIO, [201 N.L.R.B.] 793 (1973). Accordingly, we find that the 1973 contract herein, at least as to the maintenance-of-membership clause, is to be viewed as a continuation of the 1970 contract and that the obligation of the Charging Parties to abide by the clause and pay dues also continued."
Construction of the Agreement
The Paulding doctrine, on which the Board based its interpretation of the contract, has been applied in a series of Board cases, all holding that successive union security clauses are to be construed as merged into a single, continuing requirement of union membership. See, in addition to the cases cited by the Board in the above-quoted passage, Hershey Chocolate Corp., 140 NLRB 249, 253-255 (1962); International Association of Heat Frost Insulators, Local 5, 191 NLRB 220, 221 (1971), enforced, 464 F.2d 1394 (9th Cir. 1972) (mem.). Thus, in Paulding, the Board held that even though there was a short gap between the expiration of the old agreement and the commencement of the new (both containing maintenance of membership provisions applicable to employees who were union members on their effective date), the new agreement was to be viewed as a continuation of the old, and employees who resigned their union membership effective the last day of the old agreement were subject to the maintenance-of-membership provision.*fn3
We need not pass upon the soundness of the Paulding doctrine, for the language of the maintenance-of-membership provision before us is open to only one reading. The provision applies to all employees who were union members on January 12, 1973, which was the last day of the previous contract. Petitioners were union members on that date, since their resignations became effective at midnight on that date, when the previous contract expired. Accordingly, the provision ...