Millwrights' Local Union 1102, Etc.

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Seventh Region, shall , after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region in writing within 20 days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith 23 23 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify sated Regional Director in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discriminate against our employees because of their concerted activities on behalf of Employees of Flushing Manufacturing Service or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Employees of Flushing Manufacturing Service or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective- bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. WE WILL offer Edsel O . Hartz immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of pay suffered by reason of the discrimination against him. All our employees are free to become, remain , or refrain from becoming or remaining, members of Employees of Flushing Manufacturing Service or any other labor organization. FLUSHING MANUFACTURING SERVICE, 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. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Tel. No. 963-9330 if they have any question concerning this notice or compliance with its provisions. Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO [Planet Corporation] and Wilbur Baxter. Case No. 7-CB-702. September 25, 1963 DECISION AND ORDER On November 25, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in the unfair labor prac- 144 NLRB No. 78. MILLWRIGHTS' LOCAL UNION 1102, ETC. 799 tices alleged in the complaint, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respond- ent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and brief, and finds merit in the ex- ceptions of the Respondent. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent with this decision. Baxter, the Charging Party, has been a member of Respondent Union for many years. He lived in a trailer which he moved from one job location to another. Baxter had been working in Florida for about 9 months, just before the events involved herein. He then returned to Michigan and worked for brief periods at Dearborn and Battle Creek. When this work ended, he called Respondent's head- quarters in Detroit about a job, and was told that the Planet Cor- poration at Lansing washiring local millwrights. Baxter then moved his trailer to Lansing, applied for work at Planet, and was hired there on the basis of being a local resident. The Union and Planet had a contract which provided that em- ployees would be paid a subsistence allowance based on one of four shipping points, Detroit, Flint, Saginaw, or Lansing. An employee's shipping point was whichever of these four cities was nearest to his permanent home. If Baxter's permanent home was deemed to be Detroit, he was entitled under the contract to a subsistence allowance of $49 per week while working for Planet, but if Lansing was his permanent home and shipping point, he was not entitled to a sub- sistence allowance. Baxter accepted the employment on the understanding that he would not be paid subsistence. The day after he was hired, the Union steward on the Planet job told Baxter that the Union would protest his working without a subsistence allowance. Thereafter, on a number of occasions, union representatives tried to persuade Baxter to leave the job unless he got the allowance and told him he would be in trouble otherwise. The Union's business agent requested Planet to lay off Baxter and four other union members because of its claim that their employment, without receiving the subsistence allowance, was a viola- tion of the agreement. The Employer refused to do so. Thereafter, the Union preferred charges against Baxter and the others for work- ing in the upstate area without receiving subsistence allowance, as provided for in the agreement, and for continuing to work after being notified of their violation. At a meeting of the Union Trial Board, 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baxter was found guilty, fined $25 and ordered to attend meetings of the Local for the next 3 months. He paid his fine and continued to work for Planet until he left voluntarily some time later. The Trial Examiner found that the Union had violated Section 8(b) (1) (A) and (2) by attempting to cause Baxter's discharge, be- cause he was not receiving a subsistence allowance as called for by the contract. The Union has excepted, contending that its action was intended simply to enforce a lawful contract provision and was there- fore insulated from the reach of the aforesaid sections. We find the exception to be well taken, for the reasons given below, and without reaching other contentions urged by Respondent. The Act does not outlaw discrimination in employment as such, but only such discrimination, either by employers or unions, as encourages or discourages union membership.' In determining whether discrimi- nation, or an attempt to cause it, falls within the statutory condemna- tion, " . . . it is the `true purpose' or `real motive' that constitutes the test." 2 This is not to say that the required intent must in all cases be independently proved. Some conduct may by its very nature carry its own indicia of unlawful intent because of the natural and foresee- able consequences that flow from it. There may also be situations where an inference of unlawful intent may be justified from the fact that employer action affecting employment status was instigated or attempted by a union. Thus, in the absence of some other credible explanation, it may perhaps be inferred from such union instigation, standing alone, that the union would not have invoked a sanction against the employee except for the purpose of enforcing or encourag- ing compliance with union-related obligations or adherence to the union in some other respect. But though union instigation may give rise to a presumption of unlawful intent, that presumption is not a conclusive one. It may be rebutted by evidence of a compelling and overriding character show- ing that the conduct complained of was referable to other considera- tions, lawful in themselves, and wholly unrelated to the exercise of protected employee rights or to other matters with which the Act is concerned 3 In short, the Board must evaluate the union's conduct, not in the abstract, but in terms, as stated above, of its "true purpose" or "real motive." In making such an evaluation here, we find that the Union had a legitimate interest in seeking to have Planet discharge Baxter, un- tainted by any motive for discriminating against him because of fail- 'The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, and Local 357, International Brotherhood of Teamsters etc. (Los Angeles -Seattle Motor Empress ) v. N.L.R.B., 365 U S 66. 2 Local 357, International Brotherhood of Teamsters etc. v. N L R.B, supra. 3 Cf. N L R.B. v. Erie Resistor Corp., 373 U. S. 221, 228. MILLWRIGHTS' LOCAL UNION 1102, ETC. 801 ure to perform an obligation of union membership. Nor can it be said that the Union was guided by arbitrary or irrelevant considerations, inconsistent with its duty to represent all in the bargaining unit fairly .4 The contract provision for payment of subsistence allowance under specified conditions was simply and wholly a wage provision. The Union's only aim was to police and enforce the contractual provisions governing subsistence allowances with which, as it honestly believed, Planet and Baxter were failing to comply. If Planet had accepted the Union's position that the contractual provision for subsistence allow- ances covered Baxter's situation, it would not have had the effect of preferring union members over nonmembers, or one class of union members over another. Nor can it be said that the Union's classifica- tion of employees on the basis of their permanent residence and the Union's insistence on differences in compensation based on distance from home to work were arbitrary or invidious. The provision was clearly for the benefit of employees generally. For those who worked in areas away from their homes, it provided an assurance that the extra expense they incurred because of their mobility would not reduce their basic compensation; while for those who sought work in their home area, it was an assurance that because of the economic advantage to the employer they would be likely to have priority over itinerant work- ers in consideration for local jobs. The Union could thus properly view Baxter's willingness to work without the subsistence allowance as undermining an important element of its negotiated wage structure. We find, therefore, that in seeking to have Baxter discharged for violating the contractual provision, the Union acted without unlawful motive or intent but solely in pursuit of a legitimate economic objec- tive.5 We think it quite clear, moreover, that the sanction sought to be imposed against Baxter was unrelated to his exercise of a statutorily protected right. As stated in N.L.R.B. v. Furriers Joint Council of New York, etc., 224 F. 2d 78 (C.A. 2), "Conduct [by an employee] which is in violation of valid provisions of a labor-management con- tract loses the protection ordinarily afforded under Section 7. 5 * Cf. Miranda Fuel Company, Inc, 140 NLRB 181. In accord with their dissent in that case, Chairman McCulloch and Member Fanning do not rely for their finding of no viola- tion here on any criteria which judge the Union 's action in terms other than those of encouragement of union membership or loyalty , the acknowledgment of union authority, or the performance of union obligations. 5 In finding the violations alleged in the complaint, the Trial Examiner relied on Spiegelberg Lumber and Building Company, 128 NLRB 1379, as precedent for the proposi- tion that a union's attempt to cause the discharge of an employee in order to enforce a valid wage provision in a contract is an inherent encouragement of union membership or fealty. Whether such a proposition was true even under the principle of The Radio Officers' case, supra, need not be determined now. In view of the Supreme Court's hold- ing in Local 357, Teamsters, supra, that encouragement of union membership may not be automatically inferred from every action that may enhance a union's prestige, Spsegelberg cannot be sustained, and we overrule it to the extent inconsistent herewith 6In that case, the court found the union not in violation of the Act for the action it had taken against an employee who had worked on a holiday for a nonunion employer, in vio- lation of a provision in a contract in effect between his regular employer and the union. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is immaterial to the issue here that the Union might have been able to obtain redress by other means-by action against Planet, or as it actually did, by disciplining Baxter through internal union pro- cedures. As the Respondent's effort to seek enforcement of the con- tractual provision through discharge of the individual who created the problem of enforcement was not otherwise unlawful, it could not become so simply because the Respondent may have had other avenues of recourse open to it. Accordingly, we find the Union's action in seeking the discharge of Baxter not to be violative of Section 8(b) (1) (A) or 8(b) (2). We shall therefore dismiss the complaint.' [The Board dismissed the complaint.] MEMBER JENIiINS took no part in the consideration of the above Decision and Order. 7 Brewery and Soft Drink Workers Local Union No 163 (Stegmaier Brewing Company), 134 NLRB 99; Kramer Brothers Freight Lines, Inc., 130 NLRB 36; Central States Petroleum Union, Local 115 (Standard Oil Company), 127 NLRB 223, enfd sub now. Local 483, International Bortherhood of Boile:makeis, Iron Ship Builders, Blacksmiths, Forgers & Helpers of America, AFL-CIO, et al. v. N L R B., 288 F. 2d 166 (C A D C) Daugherty Company, Inc, 112 NLRB 986. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner Lee J. Best at Detroit, Michigan, on September 23, 1960, upon a complaint issued by the General Counsel of the National Labor Relations Board, and answer filed thereto by Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Respondent Union. The complaint, as amended, alleges in substance that on or about the second week in March 1960, the Respondent engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act by attempting to cause Planet Corporation (herein called the Employer) to terminate or discontinue the employment of Wilbur Baxter because he refused to adhere to and comply with Respondent Union's working rules and existing policies relative to subsistence allowances, and because he allegedly was working in violation of Respondent Union's interpretation of the subsistence allowance provision contained in the working agreement between Respondent and the Employer. In its answer to the complaint, the Respondent Union admits all juris- dictional allegations pertaining to commerce, denies all allegations of unfair labor practices, and by way of demurrer affirmatively alleges that alleged conduct, if true, does not constitute a violation of the Act. At the conclusion of the hearing, all parties waived oral argument, and were afforded opportunity to file written briefs with the Trial Examiner. Written briefs thereafter filed by General Counsel and the Respondent have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYER Planet Corporation is and has been at all times material herein a Michigan cor- poration, maintaining its principal place of business at Lansing, Michigan, where it is engaged in the manufacture of conveyor and steel fabrications. During the past 12 months, which period is representative of all times material herein, this Employer manufactured, sold, and shipped from its Lansing plant to points outside the State MILLWRIGHTS' LOCAL UNION 1102, ETC. 803 of Michigan, finished products valued in excess of $50,000 . I find, therefore, that the Employer herein is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent, Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of representing employees in dealing with employers concerning grievances, labor disputes , wages, rates of pay, hours of employment, and conditions of work. At all times material herein, Joseph Spano and Leslie Ritchie were agents of the Respondent Union within the meaning of Section 2(13) of the Act. Headquarters of Respondent Union is located at 124 Sibley Street, Detroit 1 , Michigan. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual situation Effective May 1 , 1958, and to remain in full force and effect until April 30, 1960, the Planet Corporation entered into a written agreement with Respondent Union pertaining to the employment of millwrights, which was common to Millwright, Conveyor, and Machine Erector Contractors throughout the Union 's jurisdictional area. Inter alia, article VI-wages and other compensations-of this agreement con- tained provisions, as follows: (B) SUBSISTENCE ALLOWANCE-It is agreed that subsistence allowance is to be paid from any one of four shipping points. These will be: Detroit , Flint, Saginaw and Lansing. The shipping point for each employee will be whichever one of these four cities is nearest to his permanent home. From a radius of twelve ( 12) miles to a radius of twenty-eight ( 28) miles from the City Hall, Two Dollars ($2.00) per day will be paid for expenses . No expenses shall be paid employees working on jobs located within the twelve ( 12) mile radius. Beyond the twenty-eight ( 28) mile radius and to the sixty-five ( 65) mile radius, expenses shall be paid at the rate of Three Dollars and Fifty Cents ($3.50) per night for every night an employee is expected to stay away from home. Beyond the sixty-five ( 65) mile radius, expenses shall be paid at the rate of Seven Dollars ($7.00) per night for every night an employee is expected to remain away from home by the Employer, whether called to work or not. This is in- tended to cover weekends and any days not worked while beyond the twenty- eight ( 28) mile radius, unless otherwise paid travel time and expenses to and from the job for every day traveling is required to job and return . No member shall receive expenses while working within the twelve ( 12) mile radius in the City in which he lives. Traveling time and expenses to and from jobs located beyond the twenty- eight (28) mile radius shall be paid by the Employer , based upon actual time and expenses incurred through any method of first class transportation de- termined by the Employer. Wilbur Baxter (millwright ) has been a member of Respondent Union for the past 12 years, and is a trailer-dweller with no other permanent home. In the early part of 1959 he worked for Overhead Conveyor Company at the Dodge Main Plant (Hamtramck, Michigan), in the Detroit area with trailer address at 10640 Gratiot Avenue, Detroit 13 , Michigan. Then he moved to the State of Florida and worked about 9 months for Belcher Oil Company , during which period he resided in his trailer at West Palm Beach, Florida. Returning to the State of Michigan about January 1960, Baxter worked for Darin and Armstrong (contractors) approximately 2 weeks at the Ford Rouge Plant, Dearborn , Michigan, and approximately 2 days at 16 Mile and Mound Roads in the Detroit area. On the latter job he was paid a sub- sistence allowance. Then he moved to Battle Creek , Michigan, outside the jurisdic- tion of Respondent Union, where he continued to work approximately 2i/2 weeks for Darin and Armstrong (contractors ) at the Kellogg Plant. Upon completion of that job in Battle Creek , Baxter called Business Agent Leslie Ritchie, Flint , Michigan, to inquire about further employment . Ritchie told Baxter that the Planet Corpora- tion at Lansing, Michigan, was hiring local millwrights for work at the Fisher Body Plant in that city. Thereupon, Baxter moved with his family and trailer to Lansing, Michigan , on Saturday, February 27, 1960; first established a local address, and on Monday, February 29, 1960, was offered and accepted employment with the 727-083-64-vol. 144-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Planet Corporation as a local millwright without subsistence allowance. The Em- ployer had previously told Business Agent Ritchie that only local residents would be hired on this job, and that it would not pay them any subsistence allowance. Several other members of Respondent Union, in addition to Wilbur Baxter, were hired in a similar manner by the Employer. Thereafter, nonresident millwrights complained and submitted protests to Respondent Union because no subsistence al- lowance was being paid at this Lansing job on which Elton J. Lockwood was the union steward. On the next day after he was hired by Planet Corporation, Steward Lockwood told Baxter that the Union would protest his working without a subsistence allowance of $49 per week based upon Detroit being his shipping point. Baxter told Lock- wood that he was living in a trailer at a local address in Lansing, and had not been sent out from Detroit. Thereafter about the middle of March 1960, International Representative Bob Lang, Business Agent Joe Spano, Business Agent Leslie Ritchie, and Steward Lockwood visited Baxter in Lansing, and tried to persuade him to leave the job, and threatened to bring charges against him within the Union. It is admitted that representatives of the Union protested directly to the Employer about hiring members of the Union without paying them a subsistence allowance. I credit testi- mony of Field Erection Superintendent Charles W. Steere to the effect that Leslie Ritchie (Assistant Business Agent of Local 1102) called him by telephone in March 1960, and said that "I had better lay them off." Finally, at a regular meeting the Respondent Union adopted a motion to prefer charges against Baxter and others be- fore a trial board of the Carpenters Detroit Council. The charges were preferred on April 22, 1960, by Joseph Spano and Leslie Ritchie; and at a hearing thereon the trial board found Wilbur Baxter and others guilty as charged with a recommenda- tion that a fine of $25 be assessed against each of them, and that each of them be required to attend local meetings for the next 3 months. Wilbur Baxter paid his fine on July 15, 1960, but continued to work for Planet Corporation without subsistence allowance until sometime in July 1960, when he procured a more desirable job and moved his trailer residence to Saginaw, Michigan, to work for Jarvis B. Webb (con- tractor). In the meantime, Wilbur Baxter on June 28, 1960, filed the charge against Respondent Union upon which the complaint issued by the General Counsel on August 12, 4960, is based. Concluding Findings It is clear from all the evidence in this case that Respondent Union attempted to persuade and cause the Planet Corporation to cease employing Wilbur Baxter and certain other employees without payment of a subsistence allowance pursuant to its interpretation of article VI(B) of the current collective-bargaining agreement. It also suggested that the Employer "lay them off." It also disciplined its member, Wilbur Baxter, and certain others, by bringing them before a trial board and impos- ing fines within the Union. It is contended by the Respondent Union that, in protesting the employment of Wilbur Baxter in this case, it was merely trying to protect its bargaining position on behalf of the union membership as a whole; but the Board recently held in the Spiegelberg Lumber and Building Company case, 128 NLRB 1379, that a union cannot protect that position by causing the discharge of dissident employees for that reason. Baxter was not an employee with respect to whom membership in the Union had been denied or terminated on any ground whatsoever, and had paid the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the Union. The Union demonstrated its desire to punish him as a member, dissident to union rules and policies, by bringing him to trial be- fore a committee and imposing a fine and other penalties within the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein under the proviso contained in Section 8(b)(1)(A) of the Act. Beyond that, however, the General Counsel contends that conduct of the Union attempting to affect the employment of Baxter in order to enforce the collective- bargaining agreement according to union interpretation and policies is proscribed by Section 8(b) (2) of the Act in that acquiescence of the Employer therein would con- stitute discrimination in regard to hire or tenure of employment to encourage or dis- courage membership in a labor organization. I agree, and find that, if the Employer in this case had laid off or discharged Wilbur Baxter at the request or suggestion of the Respondent Union, such conduct would have been discrimination against an employee in violation of Section 8(a)(3) of the Act. It follows, therefore, and I find that by attempting to cause Planet Corporation (Employer) to take such action, BOURNE CO. 805 Respondent Union engaged in an unfair labor practice in violation of Section 8(b) (2) of the Act; thereby restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8(b)(1) (A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the business operations set forth in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to be unfair labor practices , tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2 ), I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Planet Corporation, Lansing, Michigan, is an employer within the meaning of Section 2(2) of the Act. ' 2. Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees of Planet Corporation in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. By attempting to cause Planet Corporation, an employer, to discriminate against its employees in violation of Section 8(a)(3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Bonnie Bourne, An Individual, doing business as Bourne Co. and John Nardoni. Case No. 2-CA-840P2. September 26, 1963 DECISION AND ORDER On August 15, 1962, Trial Examiner Benjamin B. Lipton 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 attached Intermediate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report, together with supporting briefs. In addition, the Respondent filed a motion to reopen the record for the purpose of enabling it to adduce certain newly discovered evidence. Thereafter, the General Counsel and the Charging Party filed opposition to the Respondent's motion to reopen the record. 144 NLRB No. 75.