Automobile Glass Co., Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1960

129 N.L.R.B. 412 (N.L.R.B. 1960)

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 , p ie 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.