International Association of Bridge, Structural and Ornamental Iron Workers

LOCAL UNION 595, ETC. 73 should be dismissed for that reason . It is not the policy of the Board to rule on the appropriateness of a unit to be established in the future, as, under such circumstances , no present question concerning represen- tation exists' Accordingly, we will dismiss the petition. [The Board dismissed the petition.] 4 Certain-Teed Products Corporation, 102 NLRB 1324 LOCAL UNION 595, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL and CLYDE CRIDER. CaSC No. 114CB--O7. July 8,19541 Decision and Order On November 24, 1953, Arthur Leff issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. For reasons set forth in that portion of the Intermediate Report entitled "The Remedy," we agree with the Trial Examiner that the Respondent, in order to toll its back-pay obligation arising from the unfair labor practices herein, should have notified both Crider and R. Clinton Construction Company, his employer, that it had no ob- jection to Crider's rehire. Because the Respondent, on September 19, 1953, by telegram so notified only Crider's employer and gave no notice whatever to Crider, we do not accept that date, urged by the Respond- ent, as the terminal date of its obligation. On the contrary, in ac- cordance with the Trial Examiner's recommendation and the General Counsel's contention, we adopt instead as the terminal date October 28, 1953, on which date the Respondent formally stated on the record ' The Intermediate Report , otherwise correct in that respect , inadvertently misstates, in the final paragraph of section III thereof, the date of the discrimination herein as August 23 , 1953 , instead of August 25 , 1953. We hereby correct this error, which does not affect the Trial Examiner 's ultimate findings or our concurrence therein 109 NLRB No. 12. "74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the instant hearing, and in Crider's presence, that it had no objec- tion to his rehire.2 Order Upon the entire record in this case and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Union 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL, Paducah, Kentucky, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Causing or attempting to cause R. Clinton Construction Com- -pany, its agents, successors, or assigns, to discriminate against Clyde Crider or any other employee or applicant for employment in violation of Section 8 (a) (3) of the Act. (b) In any like or related manner, restraining or coercing employ- ees or prospective employees of said Company in the exercise of their right to engage in or refrain from any and all concerted activities listed in Section 7 of the Act, except to the extent that such right may .be affected by agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8 (a) (3) o f the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act : (a) Make whole Clyde Crider for any loss of pay lie may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned in wages, absent the discrimination, from August 25, 1953, the date of the discrimination , to October 28, 1953, the date on which the Respondent notified Clyde Crider at the instant hearing that it had no objection to Crider's rehire, less Crider's net earnings during such period, and less such other sums as would normally have been deducted from his wages for deposit with State and Federal agencies on account of social-security and other similar benefits , and (2) the payment to the appropriate State and Federal agencies to the credit .of Crider of a sum of money equal to the amount which, absent the discrimination, would have been deposited to Crider's credit, either as a tax upon his employer or on account of deductions made from his wages by his employer on account of such social -security or other similar benefits. (b) Post in conspicuous places at its business office at Paducah, Kentucky, and at such other places where notices to its members are customarily posted, notices in the form attached to the Intermediate s Cf. Roadway Express, Inc., 108 NLRB 847. To the extent that The Englander Conti- pany, Inc , 108 NLRB 38, is inconsistent herewith, it is hereby overruled LOCAL UNION 595, ETC. 75 Report as "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall after being signed by an official representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall. be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (c) Mail to the Regional Director for the Fourteenth Region signed copies of the above notice, for posting, the Company willing, at the place of business and construction projects of R. Clinton Con- struction Company, in places where notices to its employees are cus- tomarily posted. (d) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days of the date of this Order what steps it has taken to comply herewith. 3 This notice is hereby amended to substitute the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report STATEMENT OF THE CASE A charge having been filed by Clyde Crider against Local Union 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL, herein called the Respondent and referred to also as the Union, the General Counsel issued a complaint, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6) and (7) of the National Labor Relations Act. More specifically, the complaint alleged in substance that on August 25, 1953, and there- after, the Respondent caused Ray Clinton, doing business as R. Clinton Construc- tion Company, to discriminate against Crider in violation of Section 8 (a) (3). The Respondent in its answer denied generally the allegations of the complaint attributing to it the commission of unfair labor practices. Pursuant to notice, a hearing was held on October 28, 1953, at Sikeston, Missouri, before the undersigned, Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing by counsel, and were afforded full opportunity to examine and cro:,s-examine witnesses and to introduce evidence bearing on the issues. Both argued orally on the record at the conclusion of the case, but failed to avail themselves of the opportunity afforded them to file briefs and proposed findings of fact and conclusions of law. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY R. Clinton Construction Company, which has its principal office and place of business at Sikeston, Missouri, is engaged in the building construction business. During the 12-month period preceding the issuance of the complaint, the Company was engaged in building construction work both in the State of Missouri and in other States. The services performed by it outside the State of Missouri during that period exceeded $25,000 in value. During the same period the Company was engaged in the State of Missouri in performing construction work for business com- panies that annually ship goods valued in excess of $25,000 outside the State of Missouri. The value of the construction work performed by the Company for such companies in the State of Missouri exceeded $50,000. The Respondent concedes,. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and it is found, that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 595, International Association of Bridge , Structural and Ornamental Iron Workers, AFL, the Respondent herein , which has its office and principal place of business at Paducah, Kentucky , is a labor organization, admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES Clyde Crider had once been a member of the Union attached to another local, but in 1944, when he left the ironworkers trade to take a railroad job, he allowed his membership to lapse for nonpayment of dues. Although he returned to the trade in 1947, he was never thereafter reinstated to membership in the Union. However, he was allowed on occasions to work on union jobs under the jurisdiction of other locals, apparently upon payment of permit fees On August 25, 1953, the Company hired Crider as an ironworker on a building construction job it was performing at Sikeston, Missouri Either at the time of hiring or during the first morning of Crider's employment, Cecil Holman, the Com- pany's job superintendent, asked Crider whether he had been cleared by the Union for employment. Crider told Holman that he had, though in fact he had not. At that time the Company had no contract with the Union. There is evidence to indi- cate, however, that the Company had theretofore reached a tacit understanding with the Union to call upon the Union for ironworkers when and if it should require the services of such employees. Crider started work for the Company at 8 a. in. on August 25, and worked until noon. During his lunch hour which began at noon, Crider was approached at the job site by Percy B. Cloud, the Respondent's president and assistant business agent, who was accompanied by Cletes Deal, a member but not an official of the Respond- ent Union. Cloud asked Crider whether he was a member of the Union and had a union book. In response, Crider showed Cloud a receipt for money he had paid a union affiliated local at Memphis, Tennessee, when he had worked on a job at that locality some time ago This did not satisfy Cloud, who told Crider the receipt was no good, that what he wanted to see was a union book. Crider, of course, had none to show. And his attempted explanation that he had been seeking to gain reinstatement in the Union left Cloud unimpressed. Cloud told Crider that since he was not a union member he could work on the job no longer 1 Following Crider's failure to produce evidence of union membership, Cloud took up with Holman the question of Crider's continued employment, asking Holman whether he knew he had a nonunion man on the job. Explaining that Crider had represented himself as a union man , Holman inquired whether Cloud wanted him to get rid of Crider now that it had been discovered that Crider was not in the Union. Cloud answered that he was not telling Holman to do anything; he was simply advis- ing him that Crider was a nonunion man. However, Cloud did not stop at that point, but went on to stress that the Union would not send the Company labor if a nonunion man worked on the job; that other union employees then on the job would not work with a nonunion man, and that there would probably be "trouble" on the job if Holman continued to work Crider .2 1 The findings in the paragraph above are based upon credited testimony of Crider and Deal The latter, although called as a witness by the General Counsel, appeared by his demeanor to be more disposed to side with the Respondent than with the General Counsel, but at the same time careful not to contradict a sworn prehearing statement he had given the Board's field examiner Cloud, who appeared as a witness for the Respondent, testified at one point that lie merely asked Crider whether he was an ironworker, but his testimony in that respect is directly contradicted by an admission be elsewhere made that he asked Crider to show hum his book Cloud's assertion, that he told Crider that he had no objec- tion to Crider working though he did not have a union card, is found implausible, even on the basis of his own overall testimony Cloud impressed me generally as an evasive and unreliable witness, and his testimony is not credited to the extent it is in conflict with that of other witnesses 2 The findings made in the patagraph above are based upon credited testimony of Holman and Deal Cloud testified that his purpose in speaking to Holman was simply to call his attention to the fact that there might be "confusion on the job" if Holman allowed Crider to remain According to his version, lie warned Holman, not of "trouble," but of "con- LOCAL UNION 595, ETC. 77 Holman, reasonably it is found, interpreted Cloud's remarks as a warning that there would be a strike and possibly picketing of the job site if the Company con- tinued to retain Crider as an employee. For that reason-as appears from Holman's credited testimony, which essentially corroborates Crider's testimony in that respect- Holman informed Crider that, while he considered Crider a good worker, it would be necessary for Crider to obtain clearance from the Union in order that he might remain on the job. Holman instructed Crider to report back to work the next day if he could get clearance from the Union. As a result, Crider did not return to work that afternoon, but instead drove to Paducah, Kentucky, to see W. B. Sanders, the Respondent's business agent, in an effort- to obtain necessary clearance from the Union. After leaving Holman, Cloud, accompanied by Deal, drove to another company job site to see Ray Clinton, the Company's proprietor, with the object, according to Cloud, of helping Clinton avoid further "confusion" on the job. Cloud directed Clinton's attention to the fact that a nonunion man had been found working on his Sikeston job site, and complained about Clinton's failure to live up to an agreement to obtain ironworkers through the union hall. Clinton promised to straighten out the situation and to see to it that the Union would be called in the future when Ironworkers were required. Crider was unsuccessful in his effort to obtain union clearance on his visit to Paducah on the afternoon of August 25 When he conferred with Holman the next morning with regard to his employment, Holman informed him that he would like to have him back on the job because he was a good worker, and would reinstate him if he could get clearance from the Union? On 2 subsequent occasions, once when Crider recevied his pay for the 4 hours' work he had performed on August 25, and again on September 23, when Crider once more applied for work, Holman reiterated to Crider that he would like to have Crider as an employee but that he could not hire him without a referral from the Union. The facts set out above fully substantiate the unfair labor practice allegations of the complaint. There is clearly no substance to the Respondent's defense, that it merely called the Company's attention to the fact that it had a nonunion man on the job, but took no action to cause the termination of Crider's employment. Though Cloud refrained from expressing in so many words a direct request for Crider's dis- charge, his remarks, it is found, were deliberately intended by him, and understood by Holman, to convey the thought that the Union was insisting on Crider's dis- charge upon pain of reprisal action if the Company failed to comply. Nor do I find any merit to the suggestion that has been made, that Crider was not in fact discharged as a result of the Respondent's action, but instead voluntarily quit his employment. Holman's statement to Crider on August 25, that it was necessary for him to obtain clearance from the Union, cannot reasonably be interpreted other than as a declara- tion to Crider that Crider was being terminated because of the position taken by the Union that day, and would remain terminated unless and until he obtained per- mission from the Union to return to the job. Even if Holman's conversation with Crider on August 25 could have left any doubt on that score, such doubt was dis- pelled by Holman's explanation to Crider the following morning, as well as on sub- sequent occasions, concerning the conditions under which he woud be prepared to rehire him. It is concluded and found that, by causing the Company to discharge Crider, be- cause he was not a member in good standing of the Union, on August 23, 1953, at a time when Crider's membership in the Union could not legally be required as a condition of his employment by the Company, the Union caused the Company to discriminate against Crider in violation of Section 8 (a) (3) of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. By such conduct, it is further found, the Respondent also restrained and coerced employees of the Company in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the activities of the Company described in section I, above, have a fusion " But when asked to state what he meant by "confusion," he testified that he intended to convey the thought that union workers would not work with a nonunion employee on the job 3 This finding is based upon Holman's credited testimony 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent caused the Company illegally to discrimi- nate with regard to the hire and tenure of Crider's employment. Absent the special circumstances present in this case , the usual remedy for such an unfair labor practice would have been to order the Respondent to notify the Company in writing that it has no objection to Crider's employment and to make him whole for any loss of wages suffered by him as a result of the discrimination from the date of the dis- crimination to a date 5 days after such written notice has been given . But the facts of this case are such as to require a modification of the usual remedy. At the hear- ing the Respondent introduced uncontradicted testimony showing that on September 19, 1953-after the filing and service of Crider's charge-it sent the Company a telegram reading as follows: CLINTON ENGINEERING COMPANY, Clinton, Missouri Are you in need of employees with the qualifications of Clyde Crider, Morehouse, Missouri? We have no objection to your hiring Mr. Crider if he has the qualifications that you require. Please wire answer immediately. (S) W. B. SANDERS, G. A. IRON WORKERS LOCAL No. 595 However, it is undisputed that neither the Respondent nor the Company ever in- formed Crider of the telegram , and that Crider had no notice or knowledge until the date of the hearing of the Respondent 's withdrawal of objection to his employ- ment by the Company.4 Moreover, no claim is made that the Board or any of its agents was notified prior to the hearing date of the action taken. The Respondent contends that its liability for back pay terminated with the dis- patch of the telegram quoted above. The General Counsel disagrees , asserting that the Respondent's liability was not cut off until the hearing date when Crider and the Board were first made aware of the Respondent 's withdrawal of objections to Crider's employment. I consider the General Counsel's position well taken. The rule permitting a union to terminate its back-pay liability upon notification to the em- ployer of one who has been found discriminated against that it no longer has objec- tion to his employment is bottomed on the premise that it would be inequitable to the union to allow the amount of its liability to increase , despite its expressed willing- ness to cease its past discrimination , simply because of the employer's failure-over which it has no control-to offer reinstatement . Pinkerton's National Detective Agency, Inc., 90 NLRB 205, 213. But that rule I think contemplates that notice of the union's action will be given , if not necessarily directly to the affected employee, at least to the Board pursuant to the compliance provisions of the remedial order. Without such notice, I do not believe a withdrawal may be regarded as effective- For not only must there be considered what is equitable for the Union , but what is equitable for the affected employee as well. Surely , it is not too much to ask of a union desirous of remedying its illegal conduct that it notify the employee, or at least the Board, of the steps it has taken in that direction . To hold that a withdrawal of objections is effective to terminate liability without such notice , would not only open the door to possible collusive claims of earlier notice, but might well operate to prejudice an employee in the protection of his rights . Thus, for example, an employee who has filed a discrimination charge only against a union, because he may consider the union rather than the employer primarily responsible for the wrong, may, by reason of the absence of notice , fail to avail himself of the oppor- tunity now opened to him to reclaim his job and as a result continue to suffer a loss of wages flowing from the original discrimination . Thus, too, if such an employee- in the position of Crider-does apply after a union has withdrawn its objections. but 4 It is likewise undisputed that nothing was said to Crider about this telegram on September 23, 1953 , when , as found , the Company last rejected his application for em- ployment on the ground that clearance from the Union was necessary. LOCAL UNION 595, ETC. 79 .has no knowledge of such withdrawal , he may, because of his uncorrected belief that the union is still the one primarily to blame , continue to refrain from availing himself of the procedural right he might otherwise have exercised to file a timely charge against the employer For the reasons indicated, I conclude that effectuation of the policies of the Act requires that before a labor organization found to have violated Section 8 (b) (2) may be released from its back-pay liability, it must not only notify the employer that it no longer has objection to the e..iployment of the employee discriminated against , but must also take affirmative action reasonably calculated to bring its action to the attention of the employee It will therefore be recommended that the Respondent be ordered to make Crider whole for any loss of pay he may have suffered by reason of its unlawful conduct, by (1) the payment to him of a sum of money equal to the amount he normally would have earned in wages, absent the discrimination , from August 25, 1953, the date of the discrimination , to October 28, 1953 , the date of the hearing , less his net earnings 5 during such period, and less such other sums as would normally have been deducted from his wages for deposit with State and Federal agencies on account of social-security and other similar benefits, and (2 ) the payment to the appropriate State and Federal agencies to the credit of Crider of a sum of money equal to the amount which , absent the discrimination , would have been deposited to Crider's credit, either as a tax upon his employer or on account of deductions made from his wages by his employer on account of such social -security or other similar bene- fits. See Pen and Pencil Workers Union, Local 19593 , AFL, 91 NLRB 883. Loss of pay shall be computed on the basis of separate calendar quarters in accordance with the Board's policy as enunciated in F. W. Woolworth Company , 90 NLRB 289. Upon the basis of the foregoing finding s of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW I Local Union 595, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL, is a labor organization within the meaning of Section 2 .(5) of the Act 2. By causing the Company to discriminate with regard to the hire and tenure of employment of Clyde Crider in violation of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act 3 By restraining and coercing employees in the exercise of rights guaranteed in 'Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. (Recommendations omitted from publication.] Appendix A NOTICE TO ALL MEMBERS OF LOCAL UNION 595, INTERNATIONAL ASSOCIATION OF BRIDGE . STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, AND TO ALL EM- PLOYEES OF R CLINTON CONSTRUCTION COMPANY 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, we hereby notify you that- WE WILL NOT cause or attempt to cause R . Clinton Construction Company to discriminate against Clyde Crider or any other employee or applicant for employment in violation of Section 8 (a) (3) of the Act WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of said Company in the exercise of their right to engage in or refrain from any or all concerted activities listed in Section 7 of the Act, 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 by Section 8 (a) (3) of the Act. 5 See Crossett Lumber Company, 8 NLRB 440 , Republic Steel Corp i N L R Ii 311 U. S 7. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Clyde Crider whole for any loss of pay suffered because of the discrimination against him. LOCAL UNION 595, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, Labor Organization. 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. HANCOCK TRUCKING, INC.' and OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL 33, AFL. Case No. 6-CA-758. July 8, 1954 Decision and Order On March 2, 1954, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the exceptions, modifications, and additions noted below. 1. We agree with the Trial Examiner that the Respondent, in vio- lation of Section 8 (a) (1) of the Act, by its interrogation of and threats to William Taylor on September 29, 1953, interfered with, restrained, and coerced employees in the exercise of rights guaranteed under Section 7 of the Act. 2. We further agree with the Trial Examiner that the Respondent did not, in violation of Section 8 (a) (3) of the Act, discharge Angeline Greco and Philomena Pesce because of their membership and activities in the Union. As noted in part by the Trial Examiner in his Intermediate Report, uncontradicted evidence reveals that, not only had the decision to discharge Greco and Pesce during the week The name of the Respondent appears as corrected at the hearing. 109 NLRB No. 9.