E & B Brewing Co., Inc.

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding all other employees, clerical employees, professional em- ployees, guards and watchmen, and supervisors as defined in the Act."' [Text of Direction of Election omitted from publication.] 18 The petition as amended describes a unit of all letterpress , gravure, newspaper press- men, apprentices and helpers, and all offset or lithographic production employees, in- cluding all offset or lithographic pressmen , apprentices and helpers , artists , pasteup men, cameramen, platemakers, and strippers . The record indicates , however, that this unit description refers to 14 employees, all of whom spend the great majority of their time doing letterpress work . The Intervenor , while not seeking to represent any of these 14 employees, contends that the unit as described in the petition , insofar as it identifies offset classifications , infringes upon its jurisdictional rights . The record indicates that there are no employees of the Employers classified as offset or lithographic pressmen, apprentices and helpers , artists, pasteup men , cameramen , platemakers , and strippers. Accordingly , we do not include these classifications in the unit . In so describing the unit, we are in no way to be construed as rendering a jurisdictional award regarding job content or work assignments . See The Plumbing Contractors Association of Baltimore, Maryland, Inc., 93 NLRB 1081, 1087. E & B ,Brewing Company, Inc. and Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO and Thomas Pfeifle. Cases Nos. 7-CA-1669 and 7-CB-363. Decem- ber 9, 1958 DECISION AND ORDER On February 21, 1958, Trial Examiner Thomas S. Wilson issued his Intermediate Report in this case, finding that the Respondents had not violated Section 8(a) (3) and (1) of Section 8(b) (2) and (1) (A), as alleged in the complaints, and recommending that the complaints be dismissed in their entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondent Company filed exceptions to the Inter- mediate.. Report, and the .General Counsel also filed a brief and an addendum. Pursuant to leave, the Respondent Union filed a reply brief and an addendum. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings of the Trial Examiner but not his conclusions or recommendations, as indicated below. In. his Intermediate Report the Trial Examiner found,. and we agree, that : The Company and the Union had an industrywide ex- clusive hiring-hall contract, which the Union agreed to operate with- out discrimination against nonmembers; the Company did not follow 122 NLRB No. 50. E & B BREWING COMPANY, INC. 355 the contractual procedure for employing Pfeifle as a truckdriver (to wit : by applying to the Union's employment office or hiring hall) ; the Union on or about March 8, 1957, and again on March 12 advised the Company that it had violated the contract by failing to fill the position through the Union's hiring hall and by filling it with a non- member; on March 19 and thereafter the Union dropped its objec- tion based on Pfeifle's nonmembership, and demanded his discharge solely in order to force the Company to comply with the hiring-hall clause of the contract; for the same reason the Union refused the Company's request to clear Pfeifle, but at the same time agreed to refer Pfeifle to any other employer covered by the industrywide contract; and the Company accordingly discharged Pfeifle on or about March 21 with the explanation that the discharge was due to the pressure from the Union. On these facts, and because the contract contained a clause that the Union would operate the hiring hall without discrimination against nonmembers, the Trial Examiner concluded that the hiring- hall contract was legal and valid, and constituted a defense to the conduct of the Company and the Union. After the issuance of the Intermediate Report, however, the Board issued its opinion in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883, reversing a similar conclusion of another Trial Examiner and holding that an exclusive hiring-hall contract was unlawful unless it explicitly provided for three safeguards, including a requirement that the contracting par- ties duly post all provisions relating to the functioning of the hiring arrangement. The contract in this case contained no such safeguard, as the Union concedes. But the Union argues that the basic rules of due process preclude the so-called retroactive application of such a requirement. We find no merit in this argument., The Company argued in its exceptions that certain evidence,, not further set forth, showed that it discharged Pfeifle "for no other reason than his own misconduct" and was "in no way influenced by pressure from the Union." However, we see no reason for disturbing the Trial Examiner's contrary finding. We find, for the foregoing reasons, that by discharging Pfeifle the Company violated Section 8(a) (3) and (1), and the Union violated Section 8(b) (2) and (1) (A) by attempting to cause and causing this discharge. THE REMEDY Having found that each of the Respondents has violated the Act, we shall order them to cease and desist therefrom. We shall further order that the Company offer Thomas Pfeifle immediate and full 1 See the Mountain Pacific case, supra. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; and that the Union notify the Company in writing, and furnish a copy thereof to Pfeifle, that it withdraws its objections to his employment and requests the Company to offer Pfeifle reinstatement. We shall also order the Company and the Union jointly and severally to make Pfeifle whole for any loss of pay suffered by reason of the dis- crimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination until compliance by each Respondent respectively with the reinstatement provisions, less his net earnings during this period. The loss of earnings will be computed in accord- ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. As the Trial Examiner did not find that the Respondents discriminated against Pfeifle, the period from the date of the Inter- mediate Report to the date of our Order shall, in accordance with our usual practice, be excluded in computing the amount of back pay due him. See the Mountain Pacific case, supra. We shall also order that the Company make available to the Board, upon request, payroll and other records to facilitate the checking of compliance with our Order. The General Counsel in his brief to the Board first raised the con- tention, not further amplified, that "disgorgement under the Brown- Olds rule . . . should be ordered." The Brown-Olds case (J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594) ordered a union to reimburse employees for the dues and assess- ments which the record showed were collected as a condition of em- ployment since the beginning of the 6-month statutory period, pur- suant to an unlawful closed-shop contract. Here the General Counsel has not alleged that there was a substantively unlawful contract or hiring practice. We therefore find his Brown-Olds contention without merit.' ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby. orders that : . A. Respondent E & B Brewing Company, Inc., and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Encouraging membership in Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft 2 See Charles Ostrowski at at. d/b/a -Philadelphia Woodwork Company, 121 NLRB 1642. Cf. Los Angeles-Beattie Motor Empress, Incorporated, 121 NLRB 1629. E & B BREWING COMPANY, INC. 357 Drink & Distillery Workers of America, AFL-CIO, or any other labor organization of its employees, by discharging or in any other manner unlawfully discriminating against any employee in regard to hire or tenure of employment or any term or condition of employ- ment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights 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. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Thomas Pfeifle immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his :seniority or other rights and privileges, and jointly and severally with the Union make him whole for any loss of pay suffered as a result of the discrimination against him, in the manner set forth hereinabove. (b) Preserve and make available to the Board or its agents upon request, for examination or copying, all payroll records, social- :security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of back pay due under the terms of this Order. (c) Post at its place of business in Detroit, Michigan, copies of the notices attached hereto marked "Appendix A" and, as soon as for- warded by the Regional Director, "Appendix B." 3 Copies of such notices, to be furnished by the Regional Director for the Seventh Region, shall be duly signed and posted immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America AFL-CIO, and its officers, representatives, and agents shall : 3In 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 "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Causing or attempting to cause the Company to discriminate against any of its employees in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Company make whole Thomas Pfeifle for any loss of pay suffered as a result of the discrimination against him in the manner set forth hereinabove. (b) Notify Thomas Pfeifle and the Company, in writing, that it withdraws its objection to Pfeifle's employment and requests the Company to offer him reinstatement. (c) Post at its business offices copies of the notice attached hereto marked "Appendix B."' Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall be duly signed and posted immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. MEMBERS RODGERS AND JENKINS took no part in the consideration of the above Decision and Order. See preceding footnote. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, E & B BREWING COMPANY, INC. 359 by discharging any employee for failure to be cleared or referred by the above-named Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 Thomas Pfeifle immediate and full reinstate- ment to his former or a substantially equivalent position with- out prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of our discrimination against him. All our employees are free to become or 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. E & B BREWING COMPANY, 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. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to a Decision and Order 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 notify E & B Brewing Company, Inc., and Thomas Pfeifle, in writing, that we withdraw our objections to his em- ployment and request his reinstatement to his former or an equivalent position. WE WILL make Thomas Pfeifle whole for any loss of pay suf- fered because of the discrimination against him. WE WILL NOT cause or attempt to cause E & B Brewing Com- pany, Inc., to discriminate against any employee in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employ- ees in the exercise of the rights guaranteed in Section 7 of the 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, except to the extent that such rights 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. DRIVERS AND HELPERS LOCAL No. 38, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, AFL-CIO, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed on March 11, 1957, and amended on June 13, 1957, by Thomas Pfeifle, an individual, herein referred to as Pfeifle or the Charging Party, against Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, hereinafter referred to as the Union, and upon a charge duly filed on June 13, 1957, by Thomas Pfeifle, an individual, against E & B Brewing Company, Inc., hereinafter referred to as Respondent Company, the General Counsel of the Na- tional Labor Relations Board, herein called General Counsel' and the Board, respectively, by the Regional Director for the Seventh Region (Detroit, Michigan), issued individual complaints dated July 15, 1957, against Respondent Union and against Respondent Company, alleging in substance that: (1) "Respondent [Union], on or about March 8 through March 20, 1957, attempted to cause and caused the Company to terminate the employment of Thomas Pfeifle because of his non- membership in the Respondent and because he had not been cleared or referred by the Respondent although neither membership nor referal was available to Pfeifle on a nondiscriminatory basis"; and (2) "Respondent [Company], on or about March 20, 1957, a date less than 30 days after his employment, discharged Pfeifle because of his nonmembership in the Union and because the Union demanded his discharge and refused to refer or clear him for employment, although the Re- spondent at the time of said discharge had reasonable grounds for believing (1) that union membership was not available to Pfeifle on the same terms and con- ditions generally applicable to other members; (2) that union membership was de- nied to Pfeifle for reasons other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring membership; and (3) that the Union's referal and clearance practices were discriminatorily administered," all in violation of Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3) and Sec- tion 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaints, the charges and amended charges together with the order consolidating cases for hearing signed by the Regional Director for the Seventh Region on July 15, 1957, were served upon the Re- spondent Union and the Respondent Company. Respondents duly filed their an- swers wherein they admitted certain allegations of the complaints but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held on October 8, 9, and 10, 1957, at Detroit, Michigan, before the duly designated Trial Examiner. The General Counsel, the Union, and the Company were represented at the hearing by counsel. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues were afforded all the parties. Oral argument at the conclusion of the hearing was waived but briefs were received on or about November 20, 1957, from all parties. ' This term specifically includes counsel appearing for the General Counsel at the hearing. E & B BREWING COMPANY, INC. 361 Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT COMPANY E & B Brewing Company, Inc., is now, and at all times herein mentioned has been, a corporation with its principal place of business at Detroit, Michigan, herein called the Detroit Plant, where for many years and at all times mentioned herein it engaged in the production and distribution of beer and related products. Respondent Company, in the course and conduct of its business operations as aforesaid, annually causes large quantities of raw materials to be shipped to its Detroit Plant in interstate and foreign commerce from points outside the State of Michigan and causes large quantities of products produced by it at its Detroit Plant to be shipped therefrom in interstate and foreign commerce to States of the United States other than the State of Michigan and to foreign countries. During the calendar year ending December 31, 1956, which is representative of all times hereto material, Respondent Company shipped products valued in excess of $50,000 from its Detroit Plant to points outside the State of Michigan, and dur- ing the aforesaid calendar year the Respondent Company received at its Detroit Plant direct shipments from points outside the State of Michigan valued in excess of $500,000. The Respondents admit and the Trial Examiner finds that Respondent Company is and at all times material herein has been engaged in commerce within the mean- ing of the Act. H. THE ORGANIZATION INVOLVED Drivers and Helpers Local No. 38, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor organi- zation admitting employees of Respondent Company to membership. III. THE UNFAIR LABOR PRACTICES Thomas Farell Pfeifle is a young man who graduated in January 1957 from Western Michigan University with degree in business administration. He appar- ently was able to attend college through a scholarship obtained for him through the good offices of Leroy Payne, the president of the Respondent Company. During his college career vacations Pfeifle was able to obtain temporary employ- ment at the Respondent's brewery also through the kindness of Payne. This con- tinued from 1952 through 1956. In 1953, Pfeifle worked on Respondent Com- pany's beer trucks which required him to become a member of the Respondent Union which he did. When he returned to college in 1954, he took out a with- drawal card from the Union which would keep him in good standing for a period of 1 year but which on its face showed that it had to be renewed at a cost of $2 at the end of the first year on pain of automatic expulsion and loss of membership in the Union. In October 1955, Pfeifle failed to renew his withdrawal card as he had reason to believe that he would not return to the beer industry. During the year 1955-56, Pfeifle, according to his best recollection, worked less than 2 weeks for Respondent Company. He never renewed his withdrawal card nor attempted to pay his union dues or to revive his membership in the Union. After graduation in January 1957, Pfeifle returned to his friend, Payne, and asked for a job with which to support his wife and family. At the time Payne had nothing in the brewery for Pfeifle as these winter months are the slowest of the year in the industry which in 1957 had placed many employees in a laid-off status. However, Payne did have Pfeifle make a survey of the Respondent Company's television advertising and expressed a willingness to have Pfeifle replace driver Burkheimer when that employee laid off for an anticipated surgical operation and hoped that he, Payne, could continue thereafter to use Pfeifle as a replacement driver for other regular drivers as they took their vacations until October 1957, when some five of the Company's regular drivers were scheduled for retirement. Apparently Pfeifle asked for a guarantee of employment from Payne but was refused. Pfeifle did accept the survey job which was outside the jurisdiction of the Union. Respondent Company operated its brewery under the terms of an industrywide but individually signed agreement with the Union which contained the following provision: The employer agrees that in the event he shall require additional employees in the classifications of employment covered by this agreement, he shall notify 362 DECISION S OF NATIONAL LABOR RELATIONS BOARD the employment office operated by the Union. In the event that said em- ployment office is unable to supply help satisfactory to the employer within twenty-four (24) hours following the request, the employer shall be free to hire in the open market . If a vacancy must be filled immediately , the em- ployer shall nevertheless notify the employment office and if satisfactory help cannot be supplied to meet the employer's requirement the employer may hire from the open market but before filling the vacancy permanently he shall consider applicants referred by the Union within said twenty-four (24) hours. The facilities of the employment office operated by the Union shall be made available to both members and nonmembers of the Union and the Union warrants that in the operation of said employment agency and referals to the employer, it will not discriminate against any individual applicant for em- ployment because of nonmembership in the Union, or otherwise restrain or coerce such applicant because of nonmembership in the Union. On February 22,2 having finished the TV survey, Pfeifle was assigned to a truck- driver's job to replace driver Burkheimer, who had to report to the hospital for his operation, by Respondent Company Personnel Manager Reig. Neither Reig nor Pfeifle notified the Union of this employment even though the driver 's job was covered by the union contract, nor was the Union asked to send any applicants for that job to the Respondent's employ. At or about the time of his assignment to the Burkheimer trucks Pfeifle repaired to the union office at Reig's suggestion to check upon his status with the Union. After consulting the financial records he was told that he had failed to renew his withdrawal card as required upon the face thereof and had therefore been expelled from membership for failure to pay such dues. He then inquired about his chances of securing a job in the industry through the hiring hall and was told by two different union representatives that his chances would be nil due to the number of men then laid off by the industry. Pfeifle testified that each of these union representatives told him that he could not secure a union card because the union books were closed. This testimony was denied by both representatives. The Trial Examiner cannot credit Pfeifle's testi- mony on this point because the evidence is undisputed that the Union customarily granted union cards and/or referred nonmembers to employers who specifically requested such individuals . The Trial Examiner is convinced that Pfeifle misinter- preted the remarks and so finds. Pfeifle reported his status to Reig but never offered to join the Union. Sometime prior to March 8, Union Shop Steward St. Auban questioned Pfeifle's right to employment on the Burkheimer truck under the union contract. Pfeifle at this time made some remarks during the discussion to the effect that the Union was not going to keep him from working. During this argument Pfeifle told St. Auban that if St. Auban were 20 years younger, he would invite St. Auban outside to settle the argument and that there would be two blows struck: one when Pfeifle hit St. Auban and the second when St. Auban hit the ground. This episode was reported to Reig and to Payne. On or about March 8, Business Agent Bondy, acting upon a complaint by St. Auban, telephoned and asked Reig if he had an employee by the name of Pfeifle employed as a truckdriver. Reig agreed but claimed that Pfeifle was a member of the Union. After an investigation Bondy maintained that in hiring Pfeifle the Respondent Company had violated its agreement with the Union in two particu- lars: first, by hiring a man who had been expelled from the Union for nonpay- ment of dues, and second, in failing to hire Pfeifle through the union hiring hall. Reig informed Pfeifle of the Bondy telephone calls and his objections to the employment of Pfeifle by the Respondent Company. On March 11 during his lunch period on the truck Pfeifle reported to the Regional Office of the Board where he sought advice, gave a statement , and signed a charge against the Union. Pfeifle reported his action to Respondent Company. On March 12, Lindsay , president of Respondent Union , telephoned Reig asking the status of the Pfeifle case and stating that he understood that the Company had agreed to pull Pfeifle off the job by that Tuesday . Lindsay maintained, as had Bondy, that Respondent Company had violated its agreement with the Union by hiring Pfeifle on the Burkheimer truck by reason of having hired a man expelled from membership for nonpayment of dues and by failing to hire through the union hall as required by the contract. During the following period there were numerous telephone calls between the parties over the matter. "All dates herein are in the year 1957 unless otherwise specified. E & B BREWING COMPANY, INC. 363 On March 19 the Detroit Brewers Association had a meeting with the Union at noon. As the meeting was breaking up Bondy remarked to the group as a whole that the Union was sick and tired of having the employers violating their contract with the Union by (1) not using the hiring hall and (2 ) not posting vacant jobs. Bondy stated that he was not pointing at any particular employer but that Reig could tell them about E & B. Lindsay spoke up and recalled that Reig had stated in one of his conversations over the telephone that he was oper- ating an open shop. When Reig disputed the accuracy of this statement, Bondy closed the argument by stating that he was going to enforce a hiring-hall clause even to the extent of refusing to go arbitration. On the following day, March 20, Bondy telephoned and gave Reig a deadline to discharge Pfeifle, saying that he was tired of playing games. Reig requested an extension of time in which to make up his mind and agreed to call Bondy back later. Reig thereupon telephoned Payne who had gone to New York the day before and told him of the situation . Payne ordered Reig to discharge Pfeifle before his 30-day probationary period was up because of certain things which Payne stated had destroyed his usefulness to E & B. Reig argued for keeping Pfeifle and trying out the Union. Payne reiterated his order to discharge Pfeifle. Later that same afternoon Reig telephoned Bondy and asked if there were any procedure for notifying a man of his expulsion from the Union. Bondy agreed that there was but that it was not applicable in the case of a man on a withdrawal card. Reig then inquired if Bondy would honor a request to the Union to send Pfeifle to E & B for employment. Bondy answered that under the circumstances he could not honor such a request but that, if Pfeifle would come down to the union hall, he, Bondy, would give him a card for any brewery but that of the Respondent Company and would even give Pfeifle a card to an E & B distributor- ship but could not return him to the E & B Brewery. At the conclusion of this conversation Reig finally agreed to discharge Pfeifle that same evening. The next day Pfeifle was sent into Reig who informed him of the past events and told him that due to the pressure from the Union he would have to discharge Pfeifle. Reig did not tell Pfeifle of his telephone conversation with Payne. Pfeifle has not worked thereafter for the Respondent Company. Conclusions The General Counsel in his brief commenced his discussion of the 8 (b) (1) (A) and (2 ) aspects of the present case by stating : "The record shows conclusively that the Union demanded Pfeifle's discharge because his withdrawal card had ex- pired and because his employment had not been cleared by the Union." The question of Pfeifle's union membership was originally raised by Respondent Company on or about February 19, while discussing Pfeifle's contemplated future employment on the Burkheimer truck and long before the Union had any informa- tion thereof. It was raised a second time on March 8, when apparently Reig attempted to justify the Company 's preferential treatment of Pfeifle as well as its failure to seek Burkheimer's replacement through the hiring hall on the grounds that Pfeifle was , after all, a member of the Union . On this occasion Bondy had to check the membership records before discovering that Pfeifle's membership had lapsed in October 1955 for nonpayment of dues. After making this check, Bondy included among his objections the hiring of a man expelled from membership for nonpayment of dues with the Respondent Company's breach of contract in failing to secure employees through the hiring hall as required by its contract. By March 19 the question of union membership had dropped out of the matter and the dispute was reduced to its central and sole issue: Respondent Company's failure to comply with the requirements of the hiring -hall clause of its contract with the Union which required new employees to be hired through the hiring ball. But the General Counsel contended that there was discrimination against Pfeifle in the instant case because the Union refused to issue him a work permit and to assign him to the Burkheimer job when requested to do so by the Respondent on March 20.3 8 After having rested his case and during the cross -examination of a union witness, the General Counsel suddenly sought to show an illegal 'administration of the hiring hall. As the complaint against the Union contained no allegation of such an unfair labor practice and as no evidence to that effect had been adduced during the General Counsel's case-in-chief, the Trial Examiner ruled the proposed attack on the hiring hall as such incompetent. During the colloquy following this ruling, the General Counsel appeared to agree with said ruling when he stated : "We are not trying to throw out the whole 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence is undisputed that the Union customarily honored requests by em- ployers (including those made by the Respondent Company) that specified non- union individuals be assigned to said employers for certain specific jobs and that the Union would issue work cards to such individuals and the hiring hall would assign said individuals as requested. But in the instant case, no such request was made by the Respondent Company to the Union or the hiring hall for the assign- ment of Pfeifle until nearly a month after Pfeifle had been driving the Burkheimer truck without notice to the Union or the hiring hall and in derogation of the hiring-hall clause of the contract. It is true that in this instance the Union refused to honor the Company's belated request for the assignment of Pfeifle to it. For the Union at that late date to have honored such request would have both con- doned the Company's prior breach of the hiring-hall clause and nullified the clause entirely. If the Company's request for the assignment of Pfeifle had been made prior to the employment of Pfeifle on the Burkheimer truck and at that time had been refused by the Union, then perhaps the General Counsel would have proved dis- criminatory treatment based upon nonmembership. But in making this argument under the chronology proved here, the General Counsel appears to be arguing that the Union is required to discriminate in favor of nonmembers-which would be just as much a violation of the Act as to discriminate in favor of members. Fur- thermore, for the Union to discriminate in favor of nonmembers as the General Counsel seems to require here would amount to a violation of the intent, at least, of the union guarantee not to discriminate because of nonmembership contained in the hiring-hall clause itself, if not actually violating the words of that guarantee. If the Union intended to enforce its legal contract and to abide thereby, the Trial Examiner is at a loss to see how it could have acted other than the way it actually did act in this case. The hiring hall, at least for the purposes of this case, was being run in a nondiscriminatory manner. This being so, it is perfectly pos- sible that the man being deprived of employment by the preferential treatment accorded Pfeifle by Respondent Company may also have been a nonmember. As a matter of fact the whole trouble here appears to stem from the intent of Pfeifle-and, perhaps, of the Company-to be sure to secure preferential treatment for Pfeifle personally. Pfeifle himself indicated his intent to secure personal pref- erential treatment when at the outset of this matter he told St. Auban that the Union was not going to keep him from employment on the Burkheimer truck. In order to make sure of such preferential treatment, Pfeifle and the Company sought to circumvent the legal and regularly required employment procedures, e. g., by going through the regular request for assignment prior to employment to the hiring hall. Nor was Pfeifle the least bit hesitant in asking Board assistance in his desire to retain that preferential treatment for he filed his charge in this matter within 3 days of the Union's very first inquiry into the question of his illegal preferen- tial treatment. The trouble here is that there has been no discrimination against Pfeifle based upon his nonmembership in anything which has been done in the instant case. The Union which is under statutory requirement to represent all of the employees and under contractual requirement not to discriminate because of nonmembership has in all its actions here acted to comply in both regards. It has prevented Pfeifle from securing personal preference as required by both the statute and by its legal labor agreement with the Respondent Company. The Union was merely insisting upon compliance by the Company with the hiring- hall clause of its contract. Consequently, the Trial Examiner must conclude that the Union did not violate either Section 8(b)(1)(A) and (2) of the Act. As for the complaint of discriminatory treatment by Respondent Company, the evidence is quite clear here that, while the Company very well may have been trying to secure preferential treatment for Pfeifle personally , that attempt was not based on an effort to encourage or discourage union membership and, therefore, was no violation of Section 8(a)(3) of the Act. Furthermore, Respondent Com- pany had no reason to believe that the Union was attempting to discriminate against Pfeifle for any reason other than the fact that his membership had expired hiring hall . We are saying there was discrimination with respect to the individual himself." As the hiring-hall clause of the contract involved here contained a guarantee by the Union not to discriminate in its referrals on the basis of nonunion membership, the majority opinion in Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883, deciding, according to other Board publications, that hiring halls without such assurances are illegal, Is of no applIcation in the instant matter. Y DANA CORPORATION 365 due to the nonpayment of dues, which happened to be the truth And in addition the Respondent Company knew full well from the very beginning that the Union was attempting to secure compliance with its legal hiring-hall clause-without re- gard to Pfeifle's membership or nonmembership. Consequently, the Trial Examiner must dismiss this complaint as to Respondent Company. Under these circumstances the Trial Examiner sees no necessity for even dis- cussing the claim of Respondent Company that it discharged Pfeifle for numerous acts which appeared to have annoyed Payne personally and which had nothing to do with encouragement or discouragement of union membership. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner must make the following: CoNcLusIoNs of LAW 1. Drivers and Helpers Local No. 38, international Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor, organization within the meaning of Section 2(5) of the Act. 2. E & B Brewing Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Neither Respondent Company nor Respondent Union, or either of them, has engaged in any unfair labor practice alleged in the complaint. [Recommendations omitted from publication.] Dana Corporation and International Union, International So- ciety of Electrical Craftsmen, affiliated with International Society of Skilled Trades,' Petitioner Dana Corporation and International Union, International Asso- ciation of Tool Craftsmen, affiliated with National Inde- pendent Union Council and International Society of Skilled Trades,2 Petitioner Dana Corporation and International Union, International Asso ciation of Stationary Engineers, affiliated with International- Society of Skilled Trades,3 Petitioner Dana Corporation and International Union, Millwrights Inter- national Association, affiliated with International Society of Skilled Trades,4 Petitioner Dana Corporation and International Union, International Ma- chine Repairmens Association, affiliated with International Society of Skilled Trades,5 Petitioner. Cases Nos. 35--RC-1545, 35-RC-1546, 35-RC-1548, 35-RC-1549, and 35-RC-1561. Decem- ber 9, 1958 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held on the consolidated cases 1 Herein called Electrical Craftsmen. 9 Herein called Tool Craftsmen. Herein called Stationary Engineers. * Herein called Millwrights. s Herein called Machine Repairmen. 122 NLRB No. 54.