Automobile Glass Co., Inc.

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southeastern Plate Glass Company, a Division of Automobile Glass Company, Inc., and John P. Chatfield, d/b/a South- eastern Plate Glass Company and Homer F. Burdett Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local Union No. 193, and District Coun- cil No. 38 and Homer F. Burdett. Cases Nos. 10-CA-3957 and 10-CB-994. October 25, 1960 DECISION AND ORDER On January 25, 1960, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Local Union No. 193 and Respondent District Council No. 38 filed ex- ceptions to the Intermediate Report and a brief in support thereof.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations,2 except as modified herein. 1. We affirm the Trial Examiner's finding of the existence of an un- lawful hiring practice or understanding between the Respondents herein. Chatfield, owner of Southeastern Plate Glass Company, read- ily admitted that he would not employ nonmembers of the Union unless they possessed work permits. The Union admits to the issuance of such permits to persons who have applied for membership but who have not yet been initiated. The contention of the Union that such IIn the absence of any exceptions to the Intermediate Report on the part of the Re- spondent Southeastern Plate Glass Company , we adopt, pie forma, the findings, conclu- sions, and recommendations of the Trial Examiner with respect to those paragraphs of the complaint alleging violations of Section 8(a) (1), (2), and (3) of the Act. Although the Trial Examiner did not specifically find, in the section of the Intermediate Report entitled "Findings of Fact," that the discharge of Burdett was in violation of Section 8(a) (3), such a violation is implicit in his discussion of the facts relating to said dis- charge , and we find therefore that the Respondent Company has violated said section of the Act. The Trial Examiner failed to prepare, and append to his Intermediate Report, notices to be posted by Respondents, but, instead, delegated the preparation of such notices to the Regional Director It is , however, the duty of the Trial Examiner to prepare such notices, the notices being an integral part of the Board's Order. Accordingly , and in order to correct this error, we will provide in the Order for the posting of the notices which we append hereto. 129 NLRB No. 50. SOUTHEASTERN PLATE GLASS COMPANY 413 permits are receipts for money paid as a downpayment on the initia- tion fee is incongruous, especially in view of the pertinent testimony of Business Agent Webb, which the Trial Examiner discusses, and the testimony of Shop Steward Smith, not noted in the Intermediate Re- port, in which Smith stated : "The work permit should permit a man to go on the job and work, the way I understand it, until he gets his dues fully paid and can be initiated into the Union." The issuance of such work permits, for the purpose stated by Smith, and the require- ment by the Respondent Company that prospective employees, who are not members of the Respondent Unions, possess or subsequently acquire such permits, constitute joint and consistent actions which warrant a finding of the existence of an unlawful practice or under- standing herein; and we so find. Cf. Local 715, United Brotherhood of Carpenters and Millwrights, AFL-CIO (Charles S. Wood and Co.), 121 NLRB 543, 546. The maintenance of such practice or understanding constitutes a violation of Section 8(a) (1), (2), and (3) and Section 8(b) (1) (A) and (2) of the Act. In so finding, we do not rely upon the constitution and/or bylaws of the Respondent Unions. 2. Like the Trial Examiner, we find that the Respondent Unions violated Section 8(b) (2) and (1) (A) by causing the Respondent Company to violate Section 8 (a) (3) with regard to the discharge of Burdett. The threat of fines for working with a nonmember was con- tinually proclaimed to members at union meetings. During the course of the issuance of such threats, the shop steward at Respondent Com- pany's plant warned Chatfield, the owner, that it would not be safe for union members to work with Burdett on union jobs as they might be subject to fine, thus clearly implying that the men might refuse to work if Burdett were so utilized. Chatfield had asked Burdett to get "straightened out" with the Union, but Burdett was unsuccessful in his attempt to do so. Chatfield then used Burdett only for nonunion projects until January 1 and 2, 1959, when Burdett volunteered to help complete a union job. Chatfield agreed, disregarding the steward's warning with respect to use of Burdett on union jobs. On January 2, and while Burdett was working on this, his first union job, he was dis- charged by Chatfield because, in Chatfield's own words as expressed to Burdett, "the union was after me." 9 While there is no evidence of a direct request by the Union to the Company for Burdett's discharge, we find that the steward's warning, in view of the subsequent pertinent events, constituted a constructive request in violation of Section 8(b) (1) (A) and (2) of the Act. In so finding, and in adopting, pro forma, the Trial Examiner's finding that the Company violated Section 8 (a) $ The Trial Examiner discredited Chatfield 's testimony that this statement was not true and that Burdett had actually been discharged because of his inability to perform the required work. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) of the Act by its discharge of Burdett, we likewise do not rely upon the matter contained in the constitution and/or bylaws of the Respondent Unions. 3. The Respondent Unions contend that the Brown-Olds remedy, recommended by the Trial Examiner, is not properly retroactive to a date prior to September 6, 1958, when the collective-bargaining agree- ment between the Company and the Union was executed, or to a date prior to September 10, 1958, the effective date of said agreement. The Trial Examiner recommended retroactivity to a date 6 months prior to the filing of the amended charges herein.' It is contended by the Unions that the record fails to establish, and the Trial Examiner did not find, the existence of any contractual relationship between the par- ties prior to September 6. While we do not disagree with this last statement, we find that the Trial Examiner's recommendation of the usual 6-month retroactivity period was correct inasmuch as the viola- tions herein, and the accompanying remedy, are based, not on the find- ing of an unlawful contract, but on the finding of an unlawful prac- tice or understanding.' 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 : A. The Respondent, Southeastern Plate Glass Company, a Division of Automobile Glass Company, Inc., and John P. Chatfield, d/b/a Southeastern Plate Glass Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Performing, maintaining, or giving effect to the practice or understanding with the Respondent Unions, or with any other labor organization, which unlawfully conditions the hire of applicants for employment, or the retention of employees in employment, upon clearance or approval by the Respondent Unions, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Assisting and contributing support to the Respondent Unions or to any other labor organization. (c) In any other manner encouraging membership in the Respond- ent Unions, or in any other labor organization, or otherwise inter- ' The second amended charge was filed against the Unions on February 25, 1959. The second amended charge against the Company was filed on May 8, 1959. 5 We deem the Brown-Olds remedy to be appropriate in the circumstances . Our dis- senting colleague's attack upon the remedy does not seem to square with his prior partici- pation in cases which establish the propriety of the remedy which is here provided. See, e.g., Bordas & Co., 125 NLRB 1335; Indianapolis and Central Indiana District CounoiL, et al. (Mechanical Handling Bpstema, Incorporated), 122 NLRB 396. SOUTHEASTERN PLATE GLASS COMPANY 415 fering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except in a manner permitted by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (d) Discriminating against employees in regard to their hire or tenure of employment or any term or condition of their employment, because of their nonmembership in a labor organization, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Homer F. Burdett immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges; and, jointly and severally with the Respondent Unions, make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to an analysis of the amounts of back- pay due in accordance with this Order. (c) Post at its plant in Atlanta, Georgia, copies of the notice at- tached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent Company's representative, be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, and as soon as they are forwarded by the Regional Director, copies of Respondent Unions' notice herein marked "Appen- dix B." B. The Respondents, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local Union No. 193, and District Council No. 38, their officers, representatives, agents, succes- sors, and assigns, shall : 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 "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Performing, maintaining, or giving effect to the practice or understanding with the Respondent Company, which unlawfully conditions the hire of applicants for employment, or the retention of employees in employment, upon clearance or approval by the Re- spondent Unions, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Attempting to cause or causing the Respondent Company, or any other employer, to discriminate against employees within the meaning of Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (c) In any other manner restraining or coercing employees of the Respondent Company in the exercise of the rights guaranteed in Sec- tion 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 by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Company make whole Homer F. Burdett for any loss of earnings he may have suf- fered as a result of the discrimination against him, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Post at their offices copies of the notice attached hereto marked "Appendix B."' Copies of said notice, to be furnished by the Re- gional Director for the Tenth Region, shall, after being duly signed by the Respondent Unions' authorized representatives, be posted im- mediately upon receipt thereof, and be maintained by the Respondent Unions for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Tenth Region signed copies of Appendix B, for posting by Respondent Company as pro- vided above herein. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by the Respondent Unions' representative, be forthwith returned to the Regional Director for such posting. C. The Respondent Company and the Respondent Unions, jointly and severally, shall refund to the employees of the Respondent Com- 7 See footnote 6, supra. SOUTHEASTERN PLATE GLASS COMPANY 417 pany the initiation fees, dues, assessments, work permit fees, and other moneys unlawfully paid by them, in accordance with the Board's findings herein, provided, however, that this Order shall not be construed as requiring reimbursement for any such dues or other moneys collected more than 6 months prior to the date of the amended charges herein. The Respondent Unions shall preserve and, upon request, make available to the Board or its agents, for examination and copying, all dues, initiation fees, assessments, work permit fees, and other records necessary to compute the moneys illegally exacted from employees of the Respondent Company. D. The Respondent Company and the Respondent Unions shall notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. MEMBER JENKINS , dissenting in part : I dissent. Early in the history of the administration of the National Labor Relations Act, the United States Supreme Court made it clear that the Board's discretion in fashioning remedies in unfair labor practice proceedings was not unlimited. In Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, that Court stated : "We do not think that Con- gress intended to vest in the Board a virtually unlimited discretion to devise punitive measures and thus prescribe penalties or fines which the Board may think would effectuate the policies of the Act. We have said that `this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to in- flict upon the employer any penalty it may choose because he is en- gaged in unfair labor practices even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.' We have said that the power to command affirmative action is remedial , not punitive." In the later case, Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533, the Supreme Court ad- verted to this discretion as "informed discretion" and acknowledged the Board's authority to grant a reimbursement order under circum- stances involving a dominated union and where all the employees affected by the Board's order were compelled to join the union, and compulsion was proven as to all of them. But is it the exercise of "informed discretion" to issue an omnibus reimbursement order in a case such as the present one where all we have is a general finding of hiring nonmembers of the Union only when they have work permits and the case of one employee, Burdett, as to whom there is no evidence that the Union requested his discharge or any other persuasive proof of causation ? I think not. 586439-61-vol. 129-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I view this situation, there is a decisive difference between the type of case in which coercion stems from the very finding of violation such as where a company-dominated union is involved as in Virginia Electric or proof exists of actual coercion of some specific persons, and the type of case in which there is no indication whatever as to how many employees would be the third party beneficiaries of the reimbursement order or who, if any, would not have joined the union but for the requirement found unlawful by the majority. The im- position of what has been characterized as a "shotgun blast" in the form of a remedial order is, in my opinion, hardly consistent with the principles of equity. And, as stated some 10 years ago by the Court of Appeals for the Third Circuit in N.L.R.B. v. National Biscuit Company, 185 F. 2d 123 (C.A. 3), "The powers conferred upon this court by the National Labor Relations Act to enforce the orders of the Board are equitable in nature and may be invoked only if the relief sought is consistent with the principles of equity." With these considerations in mind, and applying them to the facts of this case, I feel constrained to dissent from that portion of the majority's decision which applies the Brown-Olds remedy as well as from the finding of a violation against the Respondent Unions of Section 8(b) (1) (A) and (2) of the Act insofar as it relies on the conduct alleged with respect to the discharge of employee Burdett. With respect to the latter, it is my opinion that in the absence of evi- dence that the Union requested his discharge-and the Trial Examiner, although finding a violation with respect to him, concedes this to be so-and it appearing from the record that the action taken by the Company was unilateral in nature, the General Counsel failed to sus- tain his burden of establishing the violation by a fair preponderance of the credible evidence. To recapitulate, only by the exercise of sound discretion predicated upon the specific facts of each case can remedial provisions be fashioned which are consistent with the principles of equity, and only by relying on proven facts rather than on a web of surmise can a case be estab- lished. The majority decision, I submit, fails in these essential respects. 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, we hereby notify our employees that: SOUTHEASTERN PLATE GLASS COMPANY 419 WE WILL NOT maintain, perform, or give effect to any under- standing or practice with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local Union No. 193, and District Council No. 38, or any other labor organization, which unlawfully conditions the hire of applicants for employ- ment, or the retention of employees in employment, upon clear- ance or approval by the above-named labor organizations, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL Nor encourage membership in Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO, Local Union No. 193, and District Council No. 38, or in any other labor organization of our employees, by discriminating in regard to hire or tenure of employment or any term or condition of employ- ment, except to the extent permitted by the proviso to Section 8 (a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them 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 Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL reimburse our employees for all dues, initiation fees, assessments, and work permit fees which they were unlawfully required to pay to Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, Local Union No. 193, and District Council No. 38, as a result of the unlawful practice or understanding in which we have engaged with the aforemen- tioned labor organization. WE WILL offer to Homer F. Burdett immediate reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain members of any labor organization or to refrain therefrom, except to the extent that this right may be affected by an agreement in conformity with Sec- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. SOUTHEASTERN PLATE GLASS COMPANY, A DIVISION OF AUTOMOBILE GLASS COM- PANY, INC., AND JOHN P. CHATFIELD, d/b/a SOUTHEASTERN PLATE GLASS 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. APPENDIX B NOTICE TO ALL MEMBERS OF BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS, AFL-CIO, LOCAL UNION No. 193, AND DISTRICT COUNCIL No. 38, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT WITH, SOUTHEASTERN PLATE GLASS COMPANY 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 maintain, perform, or give effect to any under- standing or practice with Southeastern Plate Glass Company, a Division of Automobile Glass Company, Inc., or John P. Chat- field, d/b/a Southeastern Plate Glass Company, or any other em- ployer over whom the Board will assert jurisdiction, which unlawfully conditions the hire of applicants for employment, or the retention of employees in employment, upon clearance or ap- proval by us, except as authorized in the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Southeastern Plate Glass Company, or any other employer over whom the Board will assert jurisdiction, to discriminate against employees or ap- plicants for employment in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of the rights guaran- teed 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 Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. SOUTHEASTERN PLATE GLASS COMPANY 421 WE WILL reimburse all employees of Southeastern Plate Glass Company for all dues, initiation fees, assessments, and work permit fees which they were unlawfully required to pay to us as a result of the unlawful practice or understanding in which we have engaged with the aforementioned employer. WE WILL make whole Homer F. Burdett for any loss of pay suffered by him as a result of the discrimination practiced against him. BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL- CIO, LOCAL UNION No. 193, AND DISTRICT COUNCIL No. 38, Labor Organizations. Dated---------------- By------------------------------------- (Representative, Local Union No. 193 ) (Title) Dated---------------- By------------------------------------- (Representative , District Council No . 38) (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 charges filed by Homer F . Burdett, an individual, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the Tenth Region (Atlanta, Georgia ), issued a consolidated complaint , dated May 12, 1959, against Southeastern Plate Glass Company, a Division of Automobile Glass Com- pany, Inc., and John P. Chatfield, d/b/a Southeastern Plate Glass Company, herein collectively called the Respondent Employer, and Brotherhood of Painters, Dec- orators and Paperhangers of America, AFL-CIO, Local Union No. 193 , and District Council No. 38, herein collectively called the Respondent Unions. With respect to the Respondent Employer , the complaint alleges that it engaged in unfair labor practices within the meaning of Section 8(a)(1), (2 ), and (3 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended , herein called the Act. As to the Respondent Unions, the complaint alleges that it engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. In their answers the Respondent Employer and the Respondent Unions admitted the jurisdictional allegations of the complaint , but denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held at Atlanta, Georgia, on July 7 and 8, 1959, before the duly designated Trial Examiner. At the close of the General Counsel's case, both Respondents moved to dismiss the complaint. Ruling was reserved . At the close of the whole case, the Respondents renewed their motions to dismiss the complaint. Ruling again was reserved . The motions to dismiss are disposed of as hereinafter indicated . All parties presented oral argument on the record at the close of the case. After the conclusion of the hearing, the General Counsel and the Respondent Unions filed briefs with the Trial Examiner. Based upon the record as a whole, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Automobile Glass Company, Inc., was at all times material herein a Georgia corporation. Southeastern Plate Glass Company was a division of Automobile Glass Company, Inc., having its place of business in Atlanta , Georgia, where it was engaged in the sale and installation of plate glass. At all times material herein 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John P. Chatfield was the manager and agent of Southeastern Plate Glass Company. During March 1959, Chatfield purchased the assets, goodwill, and trade name of Southeastern Plate Glass Company; and since that time he has operated the said Southeastern Plate Glass Company as an individual proprietorship. During the period of 12 months prior to the date of the complaint, the Respondent Employer purchased locally materials valued in excess of $50,000, which ma- terials originated outside the State of Georgia. II. THE LABOR ORGANIZATIONS INVOLVED Brotherhood of Painters , Decorators and Paperhangers of America , AFL-CIO, Local Union No. 193, and District Council No. 38, are labor organizations within the meaning of Section 2(5) of the Act. Hl. THE UNFAIR LABOR PRACTICES A. Background The Respondent Employer and the Respondent Unions entered into a collective- bargaining contract, covering the period from September 10, 1958, through Septem- ber 9, 1960. This contract does not contain any union-security clause, nor does it provide for any type of referral system or hiring hall arrangement. By the con- tract's terms the Respondent Employer recognizes the Respondent Unions as the bargaining agent only for those of its employees engaged in "the work of outside glazing." "Automobile glass replacement work" is specifically exempted from the provisions of the contract. A "working card" system is authorized by the constitution of the Respondent Unions and is established in its bylaws, which provide that "all members must secure their current quarterly working card by the 20th of the first month of the current quarter.. " The bylaws further provide that ". members in good standing found working with a Brother who neglects to secure his current quarterly working card within the specified time, will be liable to such penalty as the Local Union of District Council may direct. . . . Any member who fails to show his working card upon demand of the Business Representative or any other member of the Local Union shall, if reported, be fined.. . Any member who has charge of work shall require all men under his control to have working cards paid up to date or notify the Representative of Local Union No. 193 or District Council No. 38. This is to apply only when there is no Shop Steward on the job." The constitution of the Respondent Unions states that "where the working card system is in force an apprentice shall be furnished with an apprentice card." The bylaws provide for "permits" to be issued to "any Painter, Paperhanger, Decorator or Glazier wishing to join Local Union No. 193." The constitution contains pro- vision under which "clearance cards" can be issued to members or apprentices wishing to leave the jurisdiction of the local union, and provides that a member may be fined if he is in the jurisdiction of a local union more than 48 hours before presenting his clearance card. In the event that a union member secures a "withdrawal card," the constitution provides that such individual ".. . shall not be permitted to work at any branch of our trade while holding such withdrawal card. Charges may be preferred against him and he may be tried and, if found guilty, punished for any violation of the laws of the Brotherhood or of the local union or district council in whose jurisdic- tion the offense is committed." Another section of the constitution provides that "any member may sever his connection with the Brotherhood by resignation by paying up all dues and arrearages, provided, however, he does not continue to work as a journeyman at any branch of the trade." B. The discharge of Homer F. Burdett Burdett was employed by the Respondent Employer from about September 30, 1958, until his discharge on January 2, 1959, as a "part-time glazier." Prior to such employment, he had been a member of the Respondent Unions but had been ex- pelled during 1952 for "working during a strike." Before he was hired, Burdett called John P Chatfield, manager of the Respondent Employer at the time, and asked him for a job. Chatfield told him to report for work and to bring a "helper" with him. Burdett brought Harry Freeman as a helper. Employee Harold Joe Smith was the shop steward of the Respondent Unions at the Respondent Employer's plant and a brother-in-law of Burdett.' About the 1 Smith later became shop foreman for the Respondent Employer. SOUTHEASTERN PLATE GLASS COMPANY 423 time that Burdett was hired, Chatfield had a conversation with Smith. Smith told him that he did not believe that Burdett was "in good standing with the Union," and that it might not be "safe" for union members to work with Burdett on "union jobs" as they might be subject to a fine for doing so? When Burdett and Freeman reported for work, Chatfield had a conversation with them. Chatfield told Burdett that he could not use him on union jobs and that he should "straighten up with the Union" so that he could perform such work; and he told Freeman that he would have to get a "working permit" from the Respondent Unions. Burdett and Freeman went together to the office of the Respondent Unions that same day. Freeman signed an application for membership in the Respondent Union and received a "Working Permit." 3 Burdett spoke to Webb in the office of the Respondent Unions, explaining that he had been expelled and that he wanted to be "reinstated" as a member. Webb took his name and told Burdett that he would "take it up with the members" and notify him at a later date? Burdett reported to Chatfield as to what had occurred at the union office. Chat- field told him that he could not work on "union jobs" unless he was reinstated as a member in the Respondent Unions. Smith, who in the meantime had checked with W. H. McMullen, financial secretary of the Respondent Unions, as to Burdett's union status, told Burdett that as a former union member he should know that he could not "go out on jobs and work with us, and get us caught and us fined." 5 Burdett was working alone on a "union job" when he was discharged. He had volunteered to work on that job on January 1, 1959, but failed to do so. While he was working on the job on January 2, Chatfield called Burdett and told him that he was discharged because "the Union was after me" for permitting Burdett to work. Chatfield testified, in substance, that he did not tell Burdett the truth when he made the above statement; that he gave Burdett the above reason for discharge in order not to embarrass him; that the real reasons for the discharge were that Burdett failed to work on January 1 and that he had a physical disability which prevented him from performing a full day's work as a glazier; and that the Respondent Unions 2 When questioned as to why a nonmember cannot work on a union job, Smith testified credibly to the effect that at union meetings it was "preached by the Business Agent [Jerome Webb] and the President" that members caught working on a union job with a nonmember "would be fined in the amount of $50." Concerning this subject Webb was questioned and testified as follows : Q. (By Mr. CARROLL.) Mr. Webb, is it possible that a Union member, who is working on a job alongside a non-Union member, could be subject to disciplinary action by the Local Union or the District Council? A. Well, it could be. Q. Do you know, sir, whether any such disciplinary action has been taken by either the Local Union or the District Council? A. No. Q. This disciplinary action, which could be taken ; if it were ; do you know what type of a penalty or disciplinary action might be meted out to the individual who was found working? A. I wouldn't know. Q. Could you sit there, sir, and say that he could be fined" A. That would be up to the Board . He could be ; it's up to the Board. But I wouldn't say what the Board would do. Q. You wouldn't sit there and say he was going to be fined? A. No, sir. Q. You wouldn't say he was going to be suspended? A. No. Q. You wouldn't say he was going to be expelled? A. No. Q. The decision is within the province, then, of the Trial Board? A. That's right. 3 The permit was received in evidence. It is entitled as above. It is dated September 29, 1958, and is signed by Webb. • It is undisputed that Burdett did not submit a written application for reinstatement, and that he did not request that he be permitted to file such application. 5 Burdett testified to the effect that Smith later notified him that his application for reinstatement had been rejected by the Respondent Unions. Smith denied the statement attributed to him by Burdett. Both Burdett and Smith were called as witnesses by the General Counsel. From their demeanor, both impressed me as reliable and credible wit- nesses. After a review of the record I can find no reason for discrediting the above denial of Smith. Accordingly, I find that the General Counsel failed to prove this fact. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not request Burdett's discharge. Webb testified that neither he nor any other official of the Respondent Unions requested the Respondent Employer to discharge Burdett. I am convinced and find that Chatfield discharged Burdett because of his non- membership in the Respondent Unions. Chatfield's admitted statement to Burdett at the time of discharge indicates a discriminatory motive. When Burdett was hired, Chatfield told him to get "straightened out" with the Respondent Unions. Other conversations with Burdett and Smith show that Chatfield was concerned about Bur- dett's union status. From his testimony as a whole, it is clear that Chatfield wanted only union members in his employ . For example, he testified as follows: All of the things that I say in this affidavit in reference to the Union -for in- stance, the reason for not putting Mr. Burdett on a Union job, was that if the Union found out that I was working a non-Union employee on a Union job, then my regular employees could be fined. On that, I don't believe the Union would ever make an issue of it. But, as I would like to testify , the Union is our livelihood for the simple reason that we could not have the volume of work without being a Union shop. We could not have enough work to make a profit without being a member of the Union, simply because all of the larger size projects of Atlanta are Union jobs. And whether it's a good Union , or a bad Union, is neither here nor there. And my opinion is-I know we have to have a Union card to perform on these so-called Union projects. From the above and from the record as a whole, it is clear that Chatfield wanted but was afraid to use Burdett on "Union jobs." During almost all of his employment, Burdett performed part-time work which was not covered by the contract. He worked only 2 or 3 days per week. There is no evidence that Burdett ever com- plained about not getting enough work or about not being allowed to work on union jobs. If Chatfield was not motivated discriminatorily, why did he not permit Burdett to continue working on a part-time basis as he had in the past? Burdett's old history of a back injury, which he testified did not interfere with his work , may have limited his usefulness on some work involving heavy lifting, but the record indicates that that was not the type of work for which Chatfield hired him originally . Accordingly, I am not able to credit Chatfield's reasons for the discharge and find that they were mere pretexts. I do not believe that the evidence is sufficient for a finding that the Respondent Union requested the Respondent Employer to discharge Burdett. The only evidence to this effect is Chatfield 's statement at the time of discharge, which would be in the nature of hearsay insofar as the Respondent Unions are concerned, since both Chat- field and Webb denied that such a request was made. The General Counsel, however, contends that "the instrument used by the Respond- ent Unions to cause the discharge of Burdett was the threat of fine to union members from working with nonunion glaziers." Although such penalty is not spelled out specifically in the union constitution and bylaws, the General Counsel contends that the evidence shows that the Respondent Unions held this threat over the heads of the employee members, who in turn relayed it to the Respondent Employer. I agree with the General Counsel that the Respondent Unions used this indirect method of causing or attempting to cause the Respondent Employer to discharge Burdett. The evidence shows that the threat of a fine was "preached" at union meetings, and that Smith, the Respondent Unions' shop steward, told Chatfield that union members could not work with Burdett because of the possibility of a fine. I find that such conduct an the part of the Respondent Unions was violative of Section 8(b) (1) (A) and (2 ) of the Act. C. The hiring procedure Chatfield admitted in his testimony that he required prospective employees either to be union members or to obtain work permits from the Respondent Unions as a con- dition of continued employment . He testified that either he or Smith called the Respondent Unions to check on the union status of prospective or newly hired employees . Concerning the necessity for a work permit, Chatfield testified: A person should have a work permit . It's my understanding a person should have a work permit in order to work along with our Union members that we employ, plus the fact that we would insist that if at all possible, that the men that we intended to work with our Union .members-that we would ask them to obtain a work permit. It's a very simple procedure , and it's a matter of safety for our own livelihood that they do so. Chatfield further testified that no one from the Respondent Unions had ever told him that he had to hire only union members; that such practice of hiring was his own SOUTHEASTERN PLATE GLASS COMPANY 425 unilateral action ; and that "I have never as . . . General Manager of Southeastern Plate Glass Company, had non-Union workers employed by me for outside glazing work. . . . I know for a fact that we have at times employed people to clean up the shop, and such as that, who were not Union." I find that the above hiring practice of the Respondent Employer is violative of Section 8 (a) (1) , (2), and (3) of the Act. The Respondent Unions deny any knowledge or participation in the above illegal hiring arrangement. Webb testified that the Respondent Unions do not refer mem- bers to jobs; and that they have no clearance arrangement with the Respondent Em- ployer. James O. Moore, vice president and recording secretary of the Respondent Unions, testified that he had never told the Respondent Employer that it could hire or work only union employees. Concerning applicants for union membership and working permits, Webb was questioned and testified as follows: Q. I wonder if you would, sir, in your own words, explain to us the process that you go through in accepting for membership, applications of people who might apply? A. Well, a man will come into our office and says he wants to become a member of our organization, and he will fill out an application blank, and he will fill out one of these small permits to show anybody when he goes out on the job-anybody that is interested-that he has made out an application. Q. (By Trial Examiner.) That's a work permit, you mean? A. That work permit there; yes, sir-that he has made out an application and that is a receipt for his money-if he pays any money. In this connection Moore was questioned and testified as follows: Q. Would you tell us just how this operates, this work permit; what the purpose of it is? A. Well, when a person comes to our office and wants to join the Local Union; if it's on a meeting date, which is the second or fourth Monday nights in each month, we initiate them then. But, if it's between meeting nights-between the second or fourth Monday nights-we can't initiate anybody except at a regular meeting, and he is given that as an identification until the regular meeting night so he can be initiated. Q. That identifies him as a member of the Union, or an applicant for mem- bership? A. An applicant, because he can't be a member until he's initiated. Q. Do you require a man to be a member of the Union, or to have what you referred to as a work permit, before he can work alongside your Union members? A. No, sir; because we don't know who they are, unless they come to our office. We don't require it. W. H. McMullen, financial secretary of the Respondent Unions, testified that a working permit is "just a form of receipt . applied to his initiation fee"; and that a man is not required to have a work permit before he can get a job. Smith testi- fied. "The work permit should permit a man to go on the job and work, the way I understand it, until he gets his dues fully paid and can be initiated into the Union." From all the evidence it is clear that there is an understanding or practice between the Respondents which requires union clearance for prospective employees, and I so find. The Respondent Employer, by its requirement that prospective employees be "cleared" by the Respondent Unions, has surrendered its normal management hiring prerogative. It is true that the Respondent Employer has the right to reject "any job applicant," but it does not hire or retain an employee for regular employment without clearance being obtained from the Respondent Unions. Obviously, one of the "safeguards" set forth in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883, 897, is absent; namely, "Selection of appli- cants for referral to jobs shall be on a non-discriminatory basis and shall not be based on or in any way affected by union membership, bylaws, rules, regulations, constitutional provisions or any other aspect or obligation of union membership, policies or requirements." Both Respondents admit that they have not posted the safeguards set forth in Mountain Pacific. Further, as in the case of Burdett's discharge, the Respondent Unions exert in- direct pressure for clearance of prospective employees on the Respondent Employer by the threat of fine to their members for working with nonunion employees. In my opinion, there can be no question but that this indirect method is deliberate and calculated to induce employers in general to require union membership as a condition of employment. The issuance of working permits and the provisions of the union constitution and bylaws, cited above, clearly indicate that such is the case. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am unable to believe that the working permit is nothing more than a receipt for money to be applied to an applicant's initiation fee, as testified to by Moore and McMullen. It is to be noted that their understanding of a working permit does not agree with that of Smith and Webb. Further, if it is just a receipt for money as the Respondent Unions contend, why was one issued to Freeman? The working permit issued to him does not show any money paid; and Webb testified to the effect that he did not receive any money from Freeman. In this connection Webb's testimony is revealing insofar as the purpose of the permit is concerned. He testified: There was no amount of money received. The best I can remember this fellow: He tells me he doesn't have any money. Well, I kind of feel for the fellow because I've been in that position, too; and I'm still in that position. So I let him go ahead. I broke a rule, and let him go ahead to work a week; then take it up, because I don't have to make a definite report on that like I do everything else. So I wasn't doing anything wrong. It was just up to me, and I let him go ahead and go to work, and work a week, and come in and pay the amount of money he was supposed to pay. For the reasons stated above, I find that the conduct of the Respondent Unions in this connection was violative of Section 8 (b) (1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondent Employer described 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Respondent Employer and the Respondent Unions have engaged in unfair labor practices, it will be recommended that each of them desist therefrom and take certain affirmative action, including the posting and distribu- tion of appropriate notices, designed to effectuate the policies of the Act. It has been found that the Respondent Unions caused the Respondent Employer to discriminate in violation of Section 8(a) (3) of the Act against Homer F. Burdett, by discharging him on January 2, 1959. Accordingly, it will be recommended that the Respondent Employer offer Burdett immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges. It further will be recommended that Respondent Employer and the Respondent Unions, jointly and severally, make whole said employee for any loss of pay suffered by reason of the discrimination by payment of a sum of money to him equal to that which he would have earned as wages from the date of the dis- crimination to the date of reinstatement, less his net earnings during such period, the loss of pay to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. It has been found that the Respondents have an understanding or practice under which all employees are cleared by the Respondent Unions and nonunion members are required to obtain working permits as a condition of employment. By this illegal hiring arrangement the Respondents have unlawfully encouraged employees to be- come or remain members of the Respondent Unions in order to obtain or retain em- ployment, thereby inevitably coercing them into the paying of union initiation fees, dues, assessments, and other moneys. Therefore, it will be recommended that the Respondents, jointly and severally, refund to the employees of the Respondent Em- ployer the initiation fees, dues, assessments, and other moneys paid by them, pro- vided, however, that this recommended order shall not be construed as requiring reimbursement for any such dues or other moneys collected more than 6 months prior to the date of the amended charge herein. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Employer is engaged in commerce within the meaning of the Act. 2. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By their practice or understanding, under which clearance is required from the Respondent Unions as a condition of employment, the Respondents have engaged in COOK PAINT & VARNISH COMPANY 427 unfair labor practices within the meaning of Section 8(a)(1), (2 ), and (3) and Section8 (b)(1)(A) and8(b)(2) oftheAct. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Homer F. Burdett, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By attempting to cause and causing the Respondent Employer to discriminate against its employees, and thus to commit an unfair labor practice within the meaning of Section 8(a)(3) of the Act, the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 7. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Cook Paint & Varnish Company and District 50, United Mine Workers of America. Case No. 23-CA-971. October 25, 1960 DECISION AND ORDER On June 17, 1960, Trial Examiner Thomas N. Kessel 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that those allegations of the complaint be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Fanning]. 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 entire record in this case, including the Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cook 129 NLRB No. 54.