Before GOODRICH, STALEY and HASTIE, Circuit Judges.
HASTIE, C.J.: The National Labor Relations Board has ordered the Kingston Cake Company to reinstate and make financially whole its former employee, Franklin Williams. The Board has also ordered the Kingston Mutual Association, a labor union of Kingston's employees, jointly with the employer to make Williams whole. Pursuant to Section 10(e) of the National Labor Relations Act,*fn1 the Board has petitioned us to enforce these orders.
Whether the Board is entitled to the relief which it prays depends first on whether the Company and the Association have been guilty of unfair labor practices with respect to Williams. The relevant facts follow Since 1946, there had been competition between the Association and the Bakery and Confectionery Workers, AFL, to represent the Company's employees. The Association had been consistently successful in this competition; and after having won a representation election in February, 1949, had executed a two-year contract with the company. Among other things, the contract contained a union security clause, in the following terms:
"3. Within the limits permitted by Federal and Commonwealth of Pennsylvania laws, the employer shall require as a condition of employment for employees, membership in the Association ... and will deduct, collect, or assist in collecting from the wages of employees when authorized ... any dues, fees, or assessments payable to the association within the authority and procedure set forth in the Federal or Commonwealth of Pennsylvania statutes ...
"4. ... The employer shall discharge an employee when expelled from the Association within the limits permitted by law."
On March 24, 1949, and pursuant to the petition of the Association, the Board conducted a union-security election, at which a substantial majority of the employees voted to authorize the Association to bargain for a union shop. The results of the election were not certified until May 16, 1949.
Williams, the employee whose discharge is here in issue, was an employee of Kingston from 1941 until May 9, 1946, except for a brief interval spent principally in military service. Although he had supported the Bakery Workers union in its bids for the employees' support, Williams was an officer of the Association at the beginning of 1949. When the representation election was held in February, 1949, Williams campaigned for the Bakery Workers. In addition, as an officer of the Association, he refused to execute the non-communist affidavit required of all officers of unions seeking NLRB certification. He stated that this was for the explicit purpose of preventing the Association from getting on the ballot, with the hope that it would thereby be destroyed.
A few days later, the Association suspended Williams from its Employee Board and filed charges and set hearings against him for violation of its by-laws. Before the hearing was held, Williams offered and executed non-communist affidavit to the secretary-treasurer of the Association. This was accepted even though the secretary-treasurer pointed out to Williams that it was on an old and superseded form and therefore ineffective. The secretary-treasurer did not ask for another affidavit, nor did Williams then offer to execute another.
An Association hearing was held on April 12, at which its employee Board voted to expel Williams from membership in the Association even though he offered then to sign the form of affidavit currently in use.
On April 19, 1949, the Association by letter, notified Williams and the president of the Company that Williams had been expelled from the Association. The Company made no response to the letter; and on April 25, the Association attorney wrote the Company president another letter, as follows:
"... Having notified you by letter of April 19, 1949, of the action taken by the Kingston Mutual Association in the case of Mr. Frank Williams, I now wish to direct your attention to Article II, Paragraph 4, of the Labor Agreement presently in effect between the Kingston Mutual Association and the Kingston Cake Company, Inc. and request that you take appropriate steps in line therewith."
On April 26, the Company replied to this letter through its counsel, as follows:
"... I am of the opinion that Kingston Cake Company cannot take any action under Article II, paragraph 4 of the agreement between it and the Union, unless the membership of Mr. Williams is terminated for failure to tender ...