Hargis Truck Line, Inc.

HARGIS TRUCK LINE, INC. 229 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of Kohler Workers' Association, affiliated with International Union, United Automobile , Aircraft and Agricul- tural Implement Workers of America (KWA-UAW, CIO, Local No. 833), or in any other labor organization, by discriminating in regard to the hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with loss of employment or other economic reprisals if they join or assist Kohler Workers' Association , affiliated with International Union, United Automobile , Aircraft and Agricultural Implement Workers of America (KWA-UAW, CIO, Local No. 833), or any other labor organization WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to join or assist Kohler Workers' Asso- ciation, affiliated with International Union, United Automobile , Aircraft and Agricultural Implement Workers of America (KWA-UAW, CIO, Local No. 833), or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or 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 organizatioq as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE WILL make whole Edward Ertel for any loss of pay he may have suffered by reason of our discrimination against him. All our employees are free to become, remain or refrain from becoming members in the above-named Union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act THE KOHLER COMPANY, Employer. Dated .. By .. ................. ........................... . (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material HARGIS TRUCK LINE, INC. and FLOYD M. SKILES LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and FLOYD M. SKILES. Cases Nos. 35-CA-439 and 35-CB-110. April 14, 1954 DECISION AND ORDER On October 30, 1953, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they 108 NLRB No. 57. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We find, as did the Trial Examiner, that after Skiles had been employed for 5 days by the Respondent Company as an extra or temporary employee, the Company, at the Respondent Union's request, refused to give him further employment until such time as he should obtain reinstatement to active membership in the Union. This conduct of the Respondent Com- pany constituted discrimination as to his hire and tenure of employment, encouraging membership in the Respondent Union, and interfering with, restraining, and coercing 'him in the exercise of the right to refrain from engaging in union activities, contrary to the provisions of Section 8 (a) (3) and (1) of the Act. The Respondent Union's conduct in causing the Respondent Company so to discriminate and thereby to restrain and coerce Skiles in the exercise of rights guaranteed by Section 7 of the Act, was violative of Section 8 (b) (2) and (1) (A) of the Act. Like the Trial Examiner, we further find that it will effectuate the purposes of the Act to remedy these unfair labor practices by directing that the Respondent Company offer reinstatement to Skiles to his former or substantially equivalent position, and that the Respondents jointly and severally make Skiles whole for any loss of pay suffered by reason of the discrimination against him. We note, however, that when Skiles' employment was ter- minated he occupied the position of an extra or temporary em- ployee. For although Skiles had been given the promise of per- manent employment, this was, as found by the Trial Examiner, subject to further processing by the Company in its usual man- ner, by checking Skiles' references and general employment background. At the hearing, Jordan, the Company's terminal manager, testified that after Skiles' termination he made a check of Skiles' employment history and that as a result of this check, although Skiles' work for the Company had been satisfactory, the Company would not now hire Skiles nor would it offer him re- instatement save as a result of this proceeding. The Trial Exam- iner rejected this assertion as abasis for denial of an order for reinstatement, finding that it was purely speculative what course of action the Company might have taken had not the Union inter- vened in Skiles' employment situation. We agree that the Com- pany's assertion is not a sufficient basis for denial of an order for reinstatement. However, our order herein is to be taken only as requiring Skiles' reinstatement to the status of an extra or temporary employee which he occupied prior to his discharge, IIARGIS TRUCK LINE, INC 231 subject to the exercise by Respondent Company in a nondiscrim- inatory manner of its right to determine whether or not he should be selected for permanent employment. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: I. The Respondent Company, Hargis Truck Line, Inc., and its officers , agents, successors , and assigns , shall: A. Cease and desist from: (1) Encouraging membership in Local 135, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor organization of its employees , by discriminating against its employees in any manner in regard to their hire or tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (2) Interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Offer to Floyd M. Skiles immediate and full reinstatement to his former or substantially equivalent position and, jointly and severally with Respondent Union , make him whole for any loss of pay suffered as a result of the discrimination against him, as provided in the section of the Intermediate Report en- titled "The Remedy." (2) Upon request make available to the Board or its agents for examination or copying , all payroll and other records necessary to analyze the amounts of back pay due. (3) Post at its terminal at Indianapolis , Indiana , copies of the notice attached to the Intermediate Report as Appendix A.' Copies of said notice , to be furnished by the Regional Director for the Ninth Region , shall, after being duly signed by a repre- sentative of Respondent Company, be posted by the Company immediately upon receipt thereof in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to in- sure that said notices are not altered , defaced , or covered by any other material. 'Said notice is hereby amended by deleting the words "The Reconimendations of a Trial Examiner," and substituting in lieu thereof the words "a Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply therewith. II. The Respondent Union, Local 135, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, its officers, representatives, and agents, shall: A. Cease and desist from: (1) Causing or attempting to cause Hargis Truck Line, Inc., its officers, agents , successors, or assigns , to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing the employees of Hargis Truck Line, Inc., in the exercise of the rights guaranteed by Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized under Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Notify Respondent Company, in writing, that it withdraws all objections to the employment of Floyd M. Skiles and that it requests said Company to offer Skiles immediate and full re- instatement to his former or substantially equivalent position. (2) Jointly and severally with Respondent Company make whole Floyd M. Skiles for any loss of pay suffered by reason of the discrimination against him, as provided in the section of the Intermediate Report entitled "The Remedy." (3) Post at its business office at Indianapolis, Indiana, and all other places where notices to its members are customarily posted, copies of the notice attached to the Intermediate Report as Appendix B.2 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by an official representative of Respondent Union, be posted immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be takenby Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail to the Regional Director for the Ninth Region signed copies of the notice attached to the Intermediate Report as Appendix B for posting, Respondent Company willing, at its Indianapolis, Indiana, terminal, in places where notices to em- ployees of Respondent Company are customarily posted. (5) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. Member Beeson took no part in the consideration of the above Decision and Order. 2 See footnote 1, supra. HARGIS TRUCK LINE, INC. Intermediate Report and Recommended Order STATEMENT OF THE CASE 233 This proceeding, brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, is based upon charges duly filed by Floyd M Skiles, an individual, against Hargis Truck Line, Inc., herein called Respondent Company, and against Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Respondent Union. Pursuant to said charges, the General Counsel of the National Labor Relations Board issued a consolidated complaint, dated June 11, 1953, against Respondents, alleging that they had engaged in unfair labor practices, Respondent Company within the meaning of Section 8 (a) (1) and (3), and Respondent Union within the meaning of Section 8 (b) (2) and 1 (A) of the Act Copies of the charges, the consolidated complaint, and notices of hearing thereon were duly served upon Respondents. Specifically, the complaint alleged that Respondent Company had aischarged Floyd M Skiles on or about March 3, 1953, and at all times thereafter had failed and refused to reinstate him, because of his lack of membership in Respondent Union, and for the purpose of encouraging membership inand activity on behalf of said organization, and that Respondent Union had caused the discharge of Skiles because of his nonmembership in Respondent Union less than 30 days after the commencement of his employment with Respondent Company The complaint further alleged that commencing on or about February 25, 1952 (apparently an inadvertence for 1953), Respondent Company had questioned its employees or applicants for employment with respect to their membership in and activities onbehalfof Respondent Union and had threatened to dis- charge employees in order to encourage membership in Respondent Union at a time when membership therein was not required as a condition of employment. The answers of both Re- spondents denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Indianapolis, Indiana, from August 5 through 7, 1953, before the undersigned Trial Examiner, Martin S Bennett, duly designated by the Chief Trial Examiner All parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence At the close of the hearing, all parties were afforded opportunity to argue orally and to file briefs and/or propose findings and conclusions Oral argument was waived and briefs have been received from all parties. After the close of the hearing, the parties submitted a stipulation, which is hereby received in evidence over the objection of the General Counsel, that Skiles, the Charging Party, had visited the office of Respondent Union on August 29, 1953; had turned in his withdrawal card and paid his dues and had received, in return, his "Union' dues book" which duly noted said payment of dues it is assumed that a previously filed motion by Respondent Union to reopen the hearing to introduce such evidence is withdrawn in any event it is denied Upon the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT L THE BUSINESS OF RESPONDENT COMPANY Respondent Company, an Indiana corporation with its principaloffice at Evansville, Indiana, is a motor vehicle common carrier operating under certificates of public convenience and necessity from the Interstate Commerce Commission. It operates terminals, docks, ware- houses, and other operational facilities in the States of Indiana, Illinois, Missouri, and in the Commonwealth of Kentucky, including a truck terminal at Indianapolis, Indiana, which is the site of the present dispute. During the 12-month period preceding the instant hearing, Re- spondent Company rendered services valued in excess of$ 1,000,000 for various business con- cerns, of which approximately $ 500,000 represents services furnished in the direct trans- portation of goods from points in the State of Indiana to points outside that State I find that Respondent Company is engaged in commerce within the meaning of the Act II. THE LABOR ORGANIZATION INVOLVED Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization admitting to membership employees of Respondent Company. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The discharge of Floyd M. Skiles 1 The issue The primary issue herein is whether Floyd M Skiles was unlawfully discharged by Re- spondent Company on or about March 3, 1953, at the behest of Respondent Union for a reason not permitted under the Act and in fact expressly forbidden thereunder At the time material herein Respondents were operating under a contract, the legality and union-security provisions of which the General Counsel does not attack Moreover, an inspection of the document discloses that its union-security provisions do not exceed the area of control permitted under the Act. The crux of the General Counsel's case is the claim that Skiles was allegedly discharged by Respondent Company at the behest of Respond- ent Union less than 30 days after the commencement of his employment with the former. This, if established, would mean that Skiles was subjected to union control at a time when the Act forbade it. 2 The Union affiliation of Skiles Skiles first joined Respondent Union, on a transfer from a sister local, in June of 1947. He took a withdrawal card in October of 1948 and was readmitted to membership in April of 1949 Skiles repeated this in March of 1950 and achieved readmittance in July of 1950 In October of 1952, Skiles left the trade in order to engage in a private business venture and again applied for and received a withdrawal card. Its issuance on that occasion was authorized by President San Soucie of Respondent Union. Skiles was in this withdrawal status at the time material herein, namely February and March of 1953. Initially; it may be helpful to define the precise status of Skiles with respect to union membership at this time, although, in my belief, the case does not stand or fall upon that issue, in view of the nature of the allegation herein Being on a withdrawal status is a method whereby a member leaving the trade may obtain a withdrawal card and thereby avoid the payment of further union dues until such time as he returns to the trade This type of card is apparently also issued to members who achieve supervisory status with their employers Upon complying with the provisions specified therein, he may be readmitted to membership without going through the preliminaries generally required of applicants for membership and, more specifically, without payment of a second initiation fee. These regulations emanate from the constitution of the International Union under which Respondent Union, Local 135, operates, it having no bylaws of its own. An inspection of article XVII of that document- discloses that the holder of such a card has "withdrawn in good standing from membership" in the particular local union. More significantly it describes the withdrawn member as an "ex-member out on a withdrawal card." The card itself states that "this card entitles him [the withdrawn member] to readmission to the local union from which this card was issued at any time." It also provides that "any member of the International Union leaving our employment or going to work at another craft or occupation must be given an honorable withdrawal card and cannot remain a member of the International Union...." I find therefore that Skiles, pursuant to the constitution under which Respondent Union operates, was not an active member in good standing of Respondent Union at the time material herein. As indicated above, he did not remain a member of the Union; viewed otherwise, in the language of Assistant Business Representative W. R. Dininger, one on a withdrawal card is irf the nature of an "honorary member" of the Union. 3. Sequence of events The Hiring of Skiles J. Spence Jordan is terminal manager in charge of the Indianapolis truck terminal . Beneath him in the supervisory hierarchy , and the only other supervisors , were Dock Foreman Frank S. Liddle and Dispatcher Earl Laswell . The evidence is clear , and I find, that all three were supervisory employees within the meaning of the Act and possessed of the right to hire and fire employees to be treated hereinafter is Respondent Company's contention that Liddle and Laswell had authority only tohiretemporary as contrasted with permanent employees , author- HARGIS TRUCK LINE, INC. 235 ity to employ those in the latter category allegedly being vested solely in Terminal Manager Jordan. Floyd Skiles had worked in the Indianapolis area as a truckdriver for some years and was known, in that capacity, to Dock Foreman Liddle who had observed him deliver freight to Re- spondent Company while employed by another trucking concern. Skiles had not previously worked for Respondent Company. In the latter part of February of 1953, Skiles called upon Liddle and asked him for work as a truckdriver Liddle asked him to return in a few days and Skiles did so, on or about Wednesday, February 25; he was put to work that day. On the occasion of hiring Skiles, Liddle asked him, according to the latter, if he was "still having trouble with the Union "i Skiles assured Liddle thathe had no difficulty with anyone in the Union, that he was on a withdrawal card; and that he intended to turn in his card and obtain his Union book if and when he obtained permanent employment. Liddle further stated, on this occasion, that the work would be temporary for a few days, but that if things worked out sat- isfactorily Skiles would have a permanent position with the Company. Skiles worked that day and the following day without event. His work was entirely satisfactory to Liddle and the Com- pany. On Friday, February 28, Liddle informed Skiles that his work had been satisfactory and that he, Liddle, although not knowing whether it would be on day or night work, could now state that Skiles had a permanent position with the Company.2 Extra or Permanent Employees Considerable testimony was adduced concerning the distinction between permanent and extra or temporary employees. The Company during the week of March 2, 1953, had approximately 30 permanent employees, according to Terminal Manager Jordan. In addition, extra employees were and are hired when and as needed by Dock Foreman Liddle for one or more days of em- ployment . They are referred to as extras , as distinguished from permanent employees, and are hired from temporarily unemployed truckdrivers who regularlyvisit this and other truck- ing companies in the area each morning ; in fact, as set forth above , Skiles was hired in precisely this manner. According to Jordan, Dock Foreman Liddle has authority solely to hire extra employees and only he, Jordan, has authority to add a permanent employee to the staff; from this testimony it is contended that Skiles was perforce hired as an extra employee and remained an extra em- ployee It is further claimed that there was no further work for Skiles at the time of his ter- mination some days later on or about March 3, 1953. But this overlooks what actually took place in the case of Skiles. Dock Foreman Liddle informed Skiles, on his third day of work, that he would be a permanent employee thereafter, although some of the details were to be worked out. Skiles was never informed that the state- ment by Liddle, patently within his apparent authority as Respondent Company's dock foreman and agent, was devoid of authorization. There is no evidence that any employee was ever so informed or that any notice to this effect was at any time posted or publicized in the terminal. While it may be that Liddle was required to clear such matters with Jordan, I am convinced that Liddle, as a matter of Company policy, employed extra truckdrivers and was empowered to transfer them to permanent status , subject to approval by Terminal Manager Jordan I so find It is a familiar rule of agency that a principal is responsible for the acts of his agent done in furtherance of the principal's interest and within the scope of the agent's general authority, even though the principal may not have authorized the act in question, and may, in fact, have iThe record discloses that Skiles had been most active in a faction of the Union membership which had opposed the current leadership of the organization, believing that the leaders had been selected in an undemocratic fashion, and also that they operated the organization in similar fashion. It is deemed unnecessary herein to pass upon the substance or lack of substance in this belief. 2 The findings herein are based upon the testimony of Skiles which was in part substantiated by that of Liddle or not controverted thereby. The testimony of Skiles was at times marked by hesitancy in responding to the questions put to him, despite his apparent intelligence, in what I believe to have been his efforts to avoid what he considered entrapment. Nevertheless, based upon his demeanor and the corroboration of his testimony, I believe him to have been a truthful witness herein. Liddle admitted questioning Skiles concerning his Union standing; he was uncertain as to the time but believed that the query was made on the third or fourth day of Skiles' employment. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forbidden it. It is enough if the principal has empowered the agent to represent him in the area in which the agent acted See Restatement of Agency, sections 219, 228 , 230, 233, 234, and Shen-Valley Meat Packers , 105 NLRB 491. There is evidence that extra employees have in the past been transferred to permanent status , that if an extra is hired for only 2 or 3 days the Company does not have him fill out an application form for employment ; but that if a satisfactory man is hired for more than a few days and the Company is in need of a permanent employee , he will be asked to fill out an application form. This brings to the fore the case of Skiles who was admittedly found to be an entirely satisfactory employee In fact, Jordan admitted that " on the basis of knowing that he[Skiles] had performed satisfactory services " hewouldhave had Skiles fill out an application form. He also admitted that the Company had, at the time, temporarily run out of application forms. It is unnecessary to determine , therefore, whether Skiles filled out an application form on the third day of his employment , as he testified, contrary to the testimony of Jordan, or whether it was a form of another nature. Jordan also testified that an employee is not classified as a permanent employee until he has been on the job for 30 days and after a check on references , commenced after approximately 2 weeks on the job, has been completed . Be that as it may, the fact still remains and I find that Skiles was selected for permanent employment by the Company and was so informed after several days on the job, subject to further processing of the type described above Significant in this respect is the testimony of Dispatcher Laswell that this was a busy season for the Com- pany and that there was need for the services of Skiles . Liddle also testified , at one point, that there was work available for Skiles at the time of his termination by Respondent Company on or about March 3. The Discharge As found, Dock Foreman Liddle questioned Skiles on February 25, at the time of his hiring, concerning his difficulties with Respondent Union and Skiles replied that he intended to turn in his withdrawal card and obtainhis book at such time as he obtained permanent employment. On Friday, February 27, Liddle informed Skiles, whose work was eminently satisfactory , that he had a permanent position with the Company Skiles then informed him that he would take steps to obtain his book the following morning . On Saturday morning , February 28, while on his way to work, Skiles stopped at the Union hall. He spoke to the clerk at the desk and expressed a desire to pick up his book, at the same time proffering his withdrawal card and $ 6, this sum representing dues for February and March. The clerk obtained Skiles' file and then informed Skiles that she was unable to " give you a book , its Gene's orders."3 On Monday morning, March 2, Skiles again stopped at the Union hall and made the same request. The girl again pro- cured his file and informed him that she was unable to give him a book. According to Skiles, a note attached to the corner of the file read "Take this man's withdrawal card , do not give book Gene." Skiles left and reported for work. He immediately informed Liddle and Dispatcher Laswell of what had taken place. He told Liddle that he had done all he could to procure the return of his book and asked him to call the Union hall in an effort to straighten out the matter . Liddle replied that he believed that he could adjust the matter and instructed Skiles to commence work. Skiles worked the remainder of the day without event . Liddle placed a telephone call for Assistant Business Agent Lammert , whose territory includes the terminal operated by Re- spondent Company. In the meantime, Skiles handed the withdrawal card and the $ 6 to Liddle who in turn gave them to Dispatcher Laswell, . stating that Laswell should turn them over to a Union representative if one appeared at the terminal. Later that day, Lammert returned Liddle's telephone call . Considerable testimony was adduced concerning this conversation from Liddle . He was a reluctant witness, himself on a withdrawal card from Respondent Union, who patently made an effort not to present testimony adverse to that organization . His recollectionwas refreshed from an affidavit given to a Board field examiner very shortly after the events under consideration and his testimony fluctuated between what may best be termed as an innocuous version not implicating Respondent Union and a version based upon refreshed recollection which entails direct legal consequences to Re- 9Clearly a reference to Gene San Soucie, president of Respondent Union; there is no evidence that any other official or employee of Respondent Union is so named . The clerk is not identified in the record and the findings as to this and the succeeding visit to the Union hall are based upon Skiles ' uncontroverted testmony. HARGIS TRUCK LINE, INC. 237 spondent Union . I have, after giving the matter much thought , credited the latter version, par- ticularly in view of the fact that it is corroborated by an independent piece of testimony which is set forth below. According to Lammert , he first learned that Skiles was working for Respondent Company through this telephone call from Liddle which I find was made on March 2, 1953. Liddle explained that he had Skiles ' withdrawal card and dues in his possession and asked Larnmert to pick them up. Lammert refused to do so and instructed Liddle to send Skiles to the Union hall to pay his dues "before I put him to work." On the following morning, Tuesday, March 3, Skiles reported for work and was informed by Liddle, as the latter admitted , that he could not put him to work until he, Skiles , " settled" with Respondent Union as he feared that Respondent Union might shut down the terminal. He did not permit Skiles to work that morning. According to Skiles , Liddle informed him that he could not work until "you get straightened up with the union"; Liddle attributed these instruc- tions to Lammert. Significantly, Terminal Manager Jordan admitted that Liddle informed him on the morning of March 3 thathehad sent Skiles home because he could not get "straightened out" with Respondent Union. As indicated , I have credited the foregoing version by Liddle, appearing twice in his testi- mony, rather than the other innocuous version appearing in other places in his testimony which attributes to Lammert merely the statement to send Skiles to the Union hall to "get straight- ened out" and is silent concerning any instruction not to put Skiles to work. My reasons are as follows. Firstly, the statements admittedly made to Skiles by Liddle on March 3 , set forth above, are far more consistent with the credited version of the Lammert-Liddle conversation. I deem it most unlikely that Liddle, in need of a truckdriver , would have prevented Skiles from working on March 3 , and on later occasions , solely on the basis of the innocuous version of the conversation. Secondly , an independent piece of testimony indicates that Lammert in effect admitted the damaging version of the conversation. Alonzo Archer is a member of Respondent Union , a former steward at another trucking con- cern in the area , is but slightly acquainted with Skiles , and, insofar as this record indicates, is an unbiased witness with no interest in the outcome of this proceeding . I therefore credit the testimony herein of Archer who impressed me as an honest witness, Lammert 's denial of the statements set forth below is not credited. Archer testified that he engaged in a conversation with Lammert at the Union hall concerning a personal matter during the first week of March. He complained of difficulty in reaching Lammert whereupon the latter replied that he had been busy on several matters, one of which was the case of Skiles Archer asked what the Skiles difficulty was and Lammert replied that Skiles "had been working on a withdrawal card ... you know that is something that an employee cannot do. We had to let him go " Skiles did not work for the Company again. Although he returned on several occasions in search of employment, he was informed by Liddleon two occasions , as Skiles uncontrovertedly testified , that he could do nothing for him until he was "straightened up" with Respondent Union. Liddle testified that a statement made by him in an affidavit on March 3 to the effect that he had a job available for Skiles and would put him to work as soon as the Union difficulty was settled , was true 4. Analysis, contentions , and conclusions There is evidence that the attitude adopted by Respondent Union was one entirely consistent with the provisions of its constitution , as well as its practice , with respect to the issuance of withdrawal cards. According to Business Agent Dininger , as well as President San Soucie of Respondent Union, the withdrawal card is to be deposited with the union before its recipient re- turns to work in the industry . Ideemit immaterial to a resolution of the issue herein to deter- mine whether Respondent Union was motivated by a desire to retaliate against Skiles, a dissident in its ranks, or whether by a bona fide concern that its working regulations not be violated . The simple answer is that a supervening public policy is controlling herein.4 The Act forbids all job discrimination designed to achieve union security except under the circumscribed provisions found in the so-called union-shop proviso permitting discrimination only for nonpayment of initiation fees and dues , and then only after 30 days of employment. 4 The fact that Skiles visited the Union hall late in August turned in his withdrawal card and dues, and received his book does not affect the legal consequences flowing from the action of Respondents in March. Furthermore, it establishes that the conduct engaged in by Respondents perforce served to encourage continued Union membership and activity on the part of Skiles. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skiles was a new employee whose employment was terminated by Respondent Company due to the position taken by Respondent Union on the sixth day of his employment, a time when an em- ployer may not arrogate to a labor organization any control over conditions of employment. See N.L.RB. v. Newspaper and Mail Deliverers' Union, 192 F 2d 960 (C. A. 2). Moreover, an employer may not relieve himself of his discrimination against employees by delegating to a labor organization control over their employment. See Thomas Rigging Co., 102 NLRB 65, Air Products, Inc., 91 NLRB 1381, and American Pipe and Steel Corp., 93 NLRB 54. Respondent Company, in support of its claim that Skiles was an extra rather than a permanent employee, adduced testimony to the effect that the collective-bargaining agreement with Re- spondent Union did not apply to Skiles. It claimed that the contract did not apply to employees until they had been in its employ for 30 days or more This claim, accepted at face value, actually would constitute further evidence of a violation herein for it means that Respondent Company terminated the services of an employee through the causation of Respondent Union which was not the bargaining representative of the employee. This runs flatly into the ban of Section 8 (a) (3) of the Act which forbids discrimination and of Section 8 (b) (2) which forbids the causation of discrimination. There is not even the saving grace of a legal union-security agreement which may be pleaded by way of defense See N.L.R.B. v. Jarka Corp , 198 F. 2d 618 (C. A. 3). Considerable testimony was adduced, which I credit, to the effect that Respondent Union had during 1952 supported Skiles in the presentation of a grievance and in subsequent arbitration resulting from his discharge by a prior employer. While this establishes that Respondent Union fought for Skiles in 1952, it does not establish, to my satisfaction, an adequate rebuttal of the position taken by Lammert inMarchof 1953 While I find the testimony of President San Soucie as to his lack of animus against Skiles, despite the latter's opposition to his policies, to be convincing and it is credited, it does not serve to rebut the conduct by Lammert whose authority to act in this general area is not challenged herein. Similarly, although President San Soucie, as he testified, may have wanted to see Skiles purely to inform him that he was in danger of incurring a second initiation fee by working without turning in his withdrawal card, this does not serve to rebut the conduct of Lammert, an agent of Respondent Union, which went further. See N.L.R.B. v. Thomas Drayage and Rigging Co. 206 F. 2d 851 (C. A. 9). Respondent company adduced testimony to the effect that its complement of permanent personnel had been reduced from 30, at the time of Skiles' discharge on March 3, to 26, as of the date of this hearing in August of 1953. No evidence was presented as to the number of hours worked by the various personnel on the dates under consideration and the record war- rants a finding that hours of employment did vary. Nor was any definite evidence presented concerning the extent that extra employees were utilized on the dates in question; in fact Liddle admitted that the Company continued, after the discharge of Skiles, to utilize the serv- ices of extras who had previously worked there Accordingly I find no substantial evidence in support of what I construe to be a claim that reinstatement ought not to be ordered herein. I have in mind the testimony set forth above that there was a need for the services of Skiles at the time of his discharge I regard similarly evidence adduced by Respondent Company concerning Skiles' employment record at other concerns. Thus Terminal Manager Jordan testified that shortly after the ter- mination of Skiles he investigated his references and employment history in the area, as was his practice, and found his record to be unsatisfactory. He claimed that he would not, on the basis of such a record, proffer the man employment de novo. And, as indicated, there is evidence that Skiles was discharged by a previous employer in the area, apparently for cause involving nonfeasance of duty. All of this impresses me as pure speculation on the part of Jordan. The fact is that he and his two subordinates, Liddle and Laswell, were quite favorably impressed with the ability of Skiles as an employee* and admitted that he was most competent. Had Respondent Union not intervened in the situation, one can only speculate as to what course of conduct Respondent Company would have followed upon acquiring this purportedly derogatory information, assuming that it would have acquired it. I deem significant herein the fact that Respondent Company, while investigating the references and work record of other employees, admittedly did dis- cover that at least two had been discharged for cause, yet took no action against them and re- tained them in its employ. This of course is not to be construed as being in derogation of its right to terminate the employment of Skiles for nondiscriminatory cause arising during the course of his employment. Respondent Union has directed attention herein to the case of N.L.R.B. v. Kingston Cake Co. 206 F. 2d 604 where the Third Circuit set aside the order of the Board providing for reinstate- HARGIS TRUCK LINE, INC. Z39 ment of an employee. This decision I deem inapposite in that the court there held that the activity of the employee in question was contrary to the objectives of the Act and that, as a matter of policy, reinstatement ought not to be ordered. The present case is totally different. Skiles was entitled to freedom from Union pressure for the first 30 days of his employment. The most that can be said here is that his conduct in not turning in his withdrawal card was contrary to the regulations of Respondent Union. That, however, was his right under the Act for the first 30 days of his employment. Reverting to the fact that Skiles had now deposited his withdrawal card and has obtained his Union book, this does not affect the legal conclusion stemming from his discharge and, in addition, does not constitute a valid basis for withholding the customary remedy for the com- mission of unfair labor practices and an order against a repetition of such unlawful conduct. See N.L.RB. v Bell Aircraft Corp 206 F. 2d 33 (C. A. 2), and N.L.R.B. v. General Motors Corp , 179 F 2d 221 (C. A. 2). In sum, Respondent Company permitted Respondent Union to arrogate to itself the Company's control over employment, and to utilize such control to accomplish a discriminatory change in the hire and tenure of employment of Skiles Although Section 8 (b) (1) (A) of the Act permits a labor organization to promulgate any membership policy it chooses, it does not authorize a labor organization to adopt a rule that requires the discharge of an employee for discriminatory reasons. Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008 (C. A. 7), cert. denied 342 U. S. 815. I find that Respondent Company discriminated with respect to the hire and tenure of em- ployment of Floyd Skiles by discharging him on March 3, 1953, thereby encouraging member- ship in Respondent Union, and also interfering with, restraining , and coercing him in the ex- ercise of the right guaranteed by Section 7 of the Act to refrain from engaging in Union activities, this constituting conduct violative of Section 8(a) (3) and (1) of the Act, respectively. I further find that Respondent Union caused Respondent Company to discriminate against Skiles in violation of Section 8 (a) (3) of the Act and has thereby restrained and coerced Skiles in the exercise of the rights guaranteed by Section 7 of the Act, this constituting con- duct violative of Section 8 (b) (2) and (1) (A) of the Act, respectively N.L.R.B. v. Thomas Drayage and Rigging Co., 206 F. 2d 851 (C. A. 9), N.L.R.B. v. Radio Officers' Union, supra, Injection Molding Co , 104 NLRB 639; and Morrison-Knudsen Co., 101 NLRB 123. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that Respondents, and each of them, have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Union has caused Respondent Company to discriminate against Floyd M Skiles in regard to his hire and tenure of employment, thereby encouraging membership in Respondent Union. It will therefore be recommended that Respondent Company offer Skiles full and immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. Having found that Re- spondent Union caused Respondent Company to discharge Skiles, it will be recommended that the Union notify the Company in writing that it has withdrawn any and all objection to the em- ployment of Skiles and that it requests Respondent Company to offer Skiles immediate and full reinstatement to his former or substantially equivalent position. It will further be recommended that Respondents jointly and severally make Skiles whole for any loss of pay suffered by reason of the discrimination against him. Squirt Distributing Co., 92 NLRB 1667. The liability of Respondent Union for back pay shall terminate 5 days 5 There is no evidence of independent interrogation of or threats to employees by Respondent Company, as alleged in the complaint, save for the one query directed to Skiles at the time of his hiring. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after it notifies Respondent Company in writing that it has no objections to the employment of Skiles Pinkerton's National Detective Agency, Inc., 90 NLRB 205 Said loss of pay shall be computed in accordance with the formula established by the Board in F. W Woolworth Co., 90 NLRB 289 See N. L. R. B. v Seven- up Bottling Co., 344 U S 344. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2(5) of the Act. 2 By discriminating in regard to the hire and tenure of employment of Floyd M. Skiles, thereby encouraging membership in Respondent Union, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 4 By causing Respondent Company to discriminate against Floyd M Skiles in violation of Section 8 (a) (3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5 By restraining and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT encourage membership in Local 135 , International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America , AFL, or in any other labor organization of our employees , by discriminating against our employees in any manner in regard to their hire or tenure of employment , or any term or condition thereof, except to the extent permitted under Section 8 (a) (3) of the Act. WE WILL NOT interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, including the right to refrain from any or all of the activities guaranteed thereunder , 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 8 (a) (3) of the Act. WE WILL offer to Floyd M. Skiles immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority , or other rights and privileges previously enjoyed, and makehimwhole for any loss of pay suffered as a result of the discrimination against him All our employees are freetobecome, to remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, HARGIS TRUCK LINE, INC. Employer. Dated ................ By.................................. ............................ ....................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered defaced, or covered by any other material. BETHLEHEM STEEL COMPANY 241 APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF HARGIS TRUCK LINE, INC. Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended we hereby notify you that: WE WILL NOT cause nor attempt to cause Hargis Truck Line, Inc., its officers, agents, successors, or assigns, to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT restrain or coerce employees of Hargis Truck Line, Inc., in the exercise of the rights guaranteed under Section 7of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, 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 8 (a) (3) of the Act. WE WILL make whole Floyd M. Skiles for any loss of earnings suffered because of the discrimination against him. WE WILL notify Hargis Truck Line, Inc., in writing, that we have no objection to the employment by said corporation of Floyd M. Skiles. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION, BEAUMONT YARD and PIPEFITTERS LOCAL UNION NO. 195, AFL, Petitioner. Case No. 39-RC-678. April 14, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clifford W. Potter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Employer's motion to dismiss is denied for reasons. indicated herein. 108 NLRB No. 51. 339676 0 - 55 - 17