Int'l Hod Carriers', Etc., Local Union No. 78

INT'L HOD CARRIERS', ETC., LOCAL UNION NO. 78 639 It seems to me, finally, that it would be unwise in the present case to infer an intention to discriminate for the purpose of encouraging membership . It is true that the Act embodies the policy of preventing discrimination by reason of union member- ship and activity. The Act also embodies, however, the policy of encouraging collective bargaining between employers and employees through representatives of their own choosing, and makes it an unfair labor practice for both employers and labor organizations to refuse to bargain collectively.15 Neither of these policies can be regarded, however, as absolutes, and when these policies are in competition with each other, some reconciliation must be effected. This can be accomplished, it seems to me, by permitting a union to protect its bargaining position when it is threatened, even though such action may run counter to some literal prescription of the Act. It may be that Mrs. Baldwin would not have participated directly perhaps in the process of collective bargaining but it seems to me evident that even an indirect role on her part would seriously have affected the Union in the critical circumstances of the present case. This would seem to be in line with the philosophy which underlies the recent decision in N.L.R.B. v. International Ladies Garment Workers' Union (Slate Belt Apparel Contractors Assn.), 274 F. 2d 376 (C.A. 3). In this case the court held that the ILGWU could enforce its policy of refraining from bargaining with employers' representatives who had previously held union office 16 by refusing to deal with one of its former employees who, through many years of employment, had acquired familiarity with the union's "strategy, thinking, working, and operations," and that the employers' insistence upon dealing with the union only through its former employee "displayed an absence of fair dealing." I am also aware that the Board in the same case had found a violation of Section 8(b)(3) of the Act,17 but this finding was based on the assumption that the union's insistence upon the confidential nature of the employment of its former employee, and the highly unfavorable consequence which it attributed to his new employment, was a mere pretext and sham. In view of the critical circumstances in which the union found itself in the present case, however, I believe that it would be unrealistic to come to a similar conclusion here. Upon the above findings of fact, and upon the entire record in the case, I reach the following: CONCLUSIONS OF LAW 1. Home Manufacturing Company, the Employer in the present case, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies Garment Workers Union, the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in unfair labor practices affecting commerce in violation of Section 8(b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] to As provided in Section 8(a) (5) and 8(b) (3) of the Act. '('The description of the ILGWU policy in this case suggests that Rufer's summary of the purport of the resolution adopted at the union convention was not entirely accurate. 11 See International Ladies' Garment Workers' Union, AFL-CIO, N. D. Department ( Slate Belt Apparel Contractors' Association, Inc.), 122 NLRB 1390. International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO [Knowlton Construction Company ] and Leon Parsley International Hod Carriers', Building and Common Laborers' Union of America, Local Union No. 78, AFL-CIO and Robert J. Haley. Cases Nos. 8-CB-396 and 8-CB-t99. November 3, 1960 SUPPLEMENTAL DECISION AND AMENDED ORDER On December 14, 1959, the Board issued its Decision and Order in the above-entitled proceeding, in which it found that,: (1) the Re- 129 NLRB No. 72. 640 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD spondent Union had participated with Knowlton Construction Coin- pany in an unlawful agreement , understanding, or practice that re- quired applicants for employment with the Company who were not members of the Respondent to obtain referrals from the Respondent as a condition of employment ; and (2 ) pursuant thereto, the Respond- ent had caused the Company to refuse to employ two individuals. The Board ordered the Respondent to cease and desist from such conduct with respect to that Company or any other employer over whom the Board would assert jurisdiction. Thereafter, the Supreme Court of the United States declared that where the Board found that a union had engaged in this kind of un- lawful conduct against the employees of one employer , it was im- proper, without proof of violations against employees of any other employer, to order the union to cease and desist from such conduct with respect to "any other employer." ' Accordingly, we hereby amend our Order in this case by deleting the phrase "or any other em- ployer over whom the Board would assert jurisdiction " from para- graphs a( 1) and (2) thereof, and amend the notice which paragraph b(4) requires the Respondent to post by deleting the phrase "or any other employer over whom the Board would assert jurisdiction" from the first two paragraphs thereof. MEMBERS JENKINS and KIMBALL took no part in the consideration of the above Supplemental Decision and Amended Order. 1 Communications Workers of America, AFL-CIO and Local No. 4372 v. N.L.R B , 362 U S. 479. American Advertising Distributors and Charles Edward Fleming Circular Distributors Union, Local B.B. 5, International Alli- ance of Bill Posters, Billers and Distributors of the United States and Canada, AFL-CIO and Paul D. Gamble. Cases Nos. 7-CA-2458 and 7-CB-636. November /., 1960 DECISION AND ORDER On April 29,1960, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceedings, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent Com- pany filed exceptions to the Intermediate Report and a supporting brief. 129 NLRB No. 60.