Brotherhood of Painters, Decorators and Paper Hangers of America

National Labor Relations Board - Board Decisions

Feb 24, 1954

107 N.L.R.B. 1254 (N.L.R.B. 1954)

12 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in International Union , Mine, Mill and Smelter
Workers , Local 244, or discourage activity in support of that organization , or any other
labor organization , or discourage any employee from exercising the right secured to
him under the National Labor Relations Act by discriminating in any manner in regard
to hire , or tenure of employment , or any term or condition of employment.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees in
the exercise of the right to self-organization , to form labor organizations , to join or
assist International Union , Mine, Mill and Smelter Workers, Local 244, or any other
labor organization , to bargain collectively through representatives of their own choosing,
and to engage in collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment , as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
SHOOK & FLETCHER SUPPLY 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
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER-
HANGERS OF AMERICA, LOCAL 902, AFL and G. J.
McDANIELS
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER-
HANGERS OF AMERICA, LOCAL 902, AFL and EARL
SAYLOR. Cases Nos. 33-CB-35 and 33-CB-36. February 24,
1954
DECISION AND ORDER
On October 13, 1953, Trial Examiner James R. Hemingway
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.
Thereafter, the Respondent filed exceptions to the Intermediate
Report.
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 Intermediate Report, the Respondent's excep-
tions, and the entire record in the case. However, we do not
107 NLRB No. 265.
BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS 1255
find it necessary to pass upon the merits , as we shall not as-
sert jurisdiction over these cases for the following reasons:
Paul W. Trice and J. L. Trice, hereinafter called the Em-
ployer, have at all times material hereto maintained their
principal office and place of business at 5017 Wheeler Street,
Fort Worth , Texas, and also a construction operation located
at Fort Bliss , Texas, where most of the material events in
this proceeding took place . With regard to the impact of the
Employer's operations on commerce , the record shows only
that at Fort Bliss the Employer furnished goods and services
to the United States Army , valued at $ 13,717, consisting prin-
cipally of painting and decorating 42 buildings.
On the record before us , we do not believe that the Board
has legal jurisdiction in this proceeding . In any event, even
assuming that the Employer ' s operations affect commerce, we
find that the services rendered to the United States Army have
no substantial effect upon the national defense and do not
warrant our assertion of jurisdiction .' Accordingly , without
otherwise considering the merits of the cases , we shall dismiss
the complaints.
[The Board dismissed the complaints.]
Member Murdock , dissenting:
In accordance with the jurisdictional policy announced in the
Westport Moving and Storage Co . case,? providing for the as-
sertion of jurisdiction over enterprises which substantially
affect the national defense, I would assert jurisdiction in this
case. As I noted in my dissent in the Western Area Housing
Co. case,' the Board has been sustained in court in a case in
which this concept was apparently the only legal basis for as-
serting jurisdiction .4 Consequently I am not prepared to accept
the view of my colleagues that we have no legal jurisdiction in
national defense cases unless the record discloses certain
specific movements across State lines . Nor can I accept their
further view that even if we have legal jurisdiction in this case
we should not assert it because the services rendered by this
Employer have no "substantial effect" upon the national
defense. Certainly the existence of military installations is
necessary to the national defense; and they cannot exist if they
are not properly maintained . I believe we must assume that the
Army would not have contracted for this Employer ' s services
in painting 42 buildings at this post if it did not consider the
work necessary to its proper maintenance . The dollar value
of the services rendered is not de minimis -- indeed it is not
substantially smaller than that involved in the original West-
[Alpine Mill and Lumber Company , 107 NLRB 915; McArthur Jersey Farm Dairy, Inc.,
107 NLRB 885 ; Taichert ' s Inc. , 107 NLRB 779.
2 91 NLRB 902.
9 107 NLRB 1263.
4Machine Products Co., 94 NLRB 668, enforced 198 F. 2d 313 ( C. A 10).
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port case . As I point out in my dissent in the Taichert case, 5
I do not think this Board is competent to appraise the degree
of essentiality to the national defense of particular goods or
services contracted for by the armed services . The only
feasible course is to maintain the same liberal approach in ap-
plying the national defense concept which was followed in the
3 years after it was announced in the Westport case.
5107 NLRB 779.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On June 9 , 1953, charges were filed by G. J. McDaniels and Earl Saylor against Brotherhood
of Painters , Decorators and Paperhangers of America , Local 902 , AFL, hereinafter called the
Respondent . On June 26 , 1953 , the Regional Director for the Sixteenth Region (Fort Worth,
Texas ) issued a complaint on the basis of said charges on behalf of the General Counsel of the
National Labor Relations Board, herein called , respectively , the General Counsel and the
Board, and simultaneously therewith issued an order consolidating cases and notice of hearing.
The complaint , in substance , alleged that on about June 1, 1953 , the Respondent caused and
attempted to cause Paul W. Trice andJ . L. Trice, hereinafter called Employer , to discriminate
against McDaniels and Saylor , applicants for employment at the Employer 's Fort Bliss oper-
ation , and thereafter caused the Employer to continue to discriminate against McDaniels and
Saylor because they were not members of Respondent in good standing and/or members of
Respondent or local unions affiliated with the Respondent and/or because they engaged in or
refused to engage in concerted activities for the purposes of collective bargaining and other
mutual aid and protection , or for reasons other than their failure to tender the periodic dues
and initiation fees uniformly required by Respondent , in violation of Section 8 (b) (1) (A) and
(2) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act. Respondent 's answer denied the commission of the unfair labor
practices alleged.
Pursuant to notice a hearing was held at El Paso, Texas , on July 23 and 24, 1953 , before
James R . Hemingway , the duly designated Trial Examiner General Counsel and the Respondent
were represented by counsel Full opportunity was afforded parties to-be heard , to examine
and cross-examine witnesses , and to introduce evidence bearing on the issues At the opening
of the hearing , counsel for the General Counsel , hereinafter called General Counsel, moved to
incorporate , by reference , the record in a related case involving McDaniels and another em-
ployer ( M. B. Morgan ) but the same union, Cases Nos 33-CA -220 and 33 -CB-34. The motion
was granted At the close of the General Counsel ' s case the Respondent moved to dismiss the
complaint . Ruling was reserved and is now denied. Aside from calling McDaniels to attack his
credibility , the Union called no witnesses . At the conclusion of the hearing the General Counsel
moved to amend the complaint to conform to the proof with respect to minor matters , such as
names, dates , and places The motion was granted without objection The parties waived oral
argument but requested permission to file a brief A date was fixed for filing thereof and the
parties were granted permission to file a single brief covering both this case and the related
case previously mentioned. Briefs have been received from both the General Counsel andthe
Respondent.
From my observation of the witnesses and upon the entire record in the case , I make the
following
FINDINGS OF FACT
L THE BUSINESS OF THE EMPLOYER
The Employer, Paul W. Trice and J. L. Trice, maintain their principal office and place of
business at Fort Worth, Texas , and during the period involved herein maintained a con-
struction operation located at Fort Bliss , Texas, where they engaged in the business of
painting and decorating . At this Fort Bliss operation the Employer furnished to the United
States Army goods and services, cons istmgprincipally ofpainting and decorating 42 buildings,
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS 1257
valued in excess of $ 13,000. The Respondent raised no issue as to jurisdiction. The Em-
ployer's business affects commerce within the meaning of the Act. i
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization admitting to membership employees of the Em-
ployer.
Ill. THE UNFAIR LABOR PRACTICES
A. Discrimination caused by Respondent
1. Sequence of events
G. J. McDanieLs was suspended by the Respondent in February 1953 when a tender of his
dues was refused because he had failed to pay a fine levied against him. He refused to pay the
fine and presumably was dropped from membership in May, for if a suspended member fails
to become reinstated within 3 months from the date of his suspension he must be dropped
according to the provisions of the constitution of the Respondent's parent organization. Earl
Saylor, the other charging party, was a paidup member of the Respondent. However, he was
friendly toward McDaniels, and when McDaniels, following his suspension, went to the
assistant district attorney in El Paso to complain that the Respondent was preventing him
from working in violation of the so-called right-to-work statute in Texas, Saylor gave an
affidavit on behalf of McDaniels adverse to the Respondent. Until June 24, 1953, when the
Respondent's new working rules were approved, the old rules were still in effect. One of
these rules prohibited members of the Respondent from working with nonunion painters
unless the latter had a permit from the Respondent to work. The fact that Saylor would
consent to work with McDaniels would, in itself, mark him as disregarding this rule.
On about April 11, 1953, before starting on the Fort Bliss job, Jack Trice, on behalf of
the Employer, met Frank Allen, the Respondent's business agent, and told him that the
Employer was new in town and would appreciate his helping them out by sending men. They
discussed the rate of pay, and Allen agreed to supply painters at the current scale. Although
there is no specific evidence that the Employer agreed to hire union painters exclusively,
Trice testified that all the painters at the start were union men. However, Allen apparently
was able to furnish only two of the painters hired by the Employer.
On June 1, 1953, McDaniels and Saylor went to the Employer's job site at Fort Bliss and told
the foreman, Robert Barron, that they were looking for a job, saying that they had heard he
needed men. Barron indicated that he would be needing men but that he was waiting for some
lumber and that they should come back later. When McDaniels and Saylor noticed a painter
there named Tippet, who was the Union's steward on the job, they told Barron that if he talked
to Tippet about them, he might not hire them. McDaniels explained that he had been suspended
and Saylor told Barron of his having made an affidavit on behalf of McDaniels. Barron said
that he was not concerned with their personal troubles, that if he wanted to hire them he would.
After McDaniels and Saylor left, Tippet told Barron that if he hired McDaniels and Saylor
there would be trouble. Barron at first testified that Tippet told him this after McDaniels and
Saylor had been there a couple of times, which would have placed Tippet' s statement as having
been made on June 8, but Barron's later testimony indicated that this could not have been the
time, and on all the evidence I find that Tippet made this statement on June 1.
When the lumber that Barron was waiting for came on about June 2, he called Frank Allen,
the Respondent's business agent, and told him he would be needing some men toward the latter
part of the week. He did not specify what day.
Whether because of something Barron had said on June 1 or later, Saylor understood that
Barron wanted him to get Allen's approval to his working for the Employer. So Saylor did
go to Allen and told him that Barron had said he could go to work. Allen said, according to
Saylor's undenied testimony, "You tell Barron I'll call him." Saylor asked Allen, "Is it on
account of the testimony I put against the local for Mr. McDanieLs? " Allen did not answer
Saylor but just looked at him. Then he told Saylor to go tell Barron to call him.
On Friday, June 5, Saylor, without McDaniels, went to the Employer's job site and asked
Barron about employment. Barron said he needed men but that he had already asked Allen
iRichland Laundry and Dry Cleaners, 93 NLRB 680; Local Union No. 50, United Brother-
hood of Carpenters and Joiners of America (AFL), 98 NLRB 1288.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to send someone and if Allen had not sent them he would hire Saylor. Tippet was standing by
at this time and when Barron asked Saylor for the Respondent's telephone number and Saylor
was unable to give it, Tippet supplied it. Barron called Allen and asked if he had sent any men
out, telling Allen that the reason he called was that a man by the name of Saylor was there.
Allen repeated the name "Saylor, " and then said he was sending the men out? Barron re-
turned to Saylor and told him that he could not put him to work now, that Allen was going to
send two men out. At that point Saylor left, saying he would be back.
That afternoon one of the men that Barron was expecting Allen to send arrived. The other
man needed by Barron either never arrived or did not report to Barron to be employed after
he arrived. During the week between June 1 and June 5, Barron heard via "the grapevine"
that Tippet was saying there would be trouble if Barron hired McDaniels and Saylor.
On Friday afternoon , June 5, Trice arrived from Fort Worth at about quitting time. Barron
talked with him about Tippet and a painter named Munoz, with whose work he was dissatisfied.
Barron told Trice that Tippet was trying to run the job , telling men when to start and when to
quit as well as that he was dissatisfied with the work which Tippet and Munoz were doing. As
a result of this conference, Barron and Trice decided that those two painters should be dis-
charged first thing the following Monday morning, as they had already left for the day. Either
in that conversation or sometime before Monday, Barron told Trice about McDaniels and
Saylor, saying that they looked like good painters and mentioning their "squabble" with the
Respondent. He told Trice that one had been suspended from the Union and that the other had
his union book with dues paid up and was in good standing. After deciding to discharge Tippet
and Munoz, Barron called Allen again on Friday evening to see if he could supply men.
Although only one man had shown up on Friday, Barron, on Friday evening, apparently saying
nothing about this, asked Allen for two men. Barron testified that he assumed the other man
due on Friday would come the next day. Allen gave no definite assurance that he would send
them.
On Monday morning, June 8, Barron discharged Tippet and Munoz. On the same morning
McDaniels and Saylor came to the job site again and told Barron that they needed work. Barron
said to keep checking with him, that he was expecting the men that he had called Allen for.
McDaniels told Barron that he was not supposed to tell him, but that if he did not hire them
they were going to "go down and file charges against the company." Barron said that he did
not need men, but that his boss was in town and that McDaniels and Saylor could speak with
him if they wished.
McDaniels and Saylor waited until Trice came and spoke with him. They told him that they
had been out a number of times before and wanted work. Trice said that the Employer had
already sent for two men to replace Tippet and Munoz and that if they did not come by the
following morning he would, if possible, put McDaniels and Saylor on; and he told them to check
back the next morning. Trice also told them he did not want to get into trouble with the local
in Fort Worth or El Paso, that he had to work under the local jurisdiction. McDaniels gave
Trice the business card of a Board agent in El Paso and suggested that he stop and talk with
him when he was in town. McDaniels and Saylor left.
Trice did go to the Board's subregional office and talked with Board representatives. He
testified, "As I was scared Iwouldgetin trouble, I did go down." He testified that he was told
by the Board agents that he would notget into trouble if he lured McDaniels and Saylor.
That afternoon, Allen came to find out why the Employer had discharged Tippet, saying that
Barron should have consulted him before discharging a union steward. While Allen was there.
Trice asked him when he was going to get him two men, and Allen told him, "I am going to
give you two men if I have to steal them off another job."
Tuesday morning McDaniels and Saylor returned ready to go to work. Meanwhile, on Monday,
the Employer had hired a man who was in El Paso on a vacation from Fort Worth. When
McDaniels and Saylor asked Trice what the situation was, Trice replied, "I am sorry. I have
got two or three new men on the job. I can't use you, I am sorry." McDaniels and Saylor said
that there was nothing left for them to do but to file charges. Prior to talking with McDaniels
and Saylor on Tuesday morning, Trice had not checked to see whether or not the men that
Allen was going "to steal" from another job had arrived After Saylor and McDaniels had
left, Trice found that the expected men had not arrived. They never did arrive and Allen
furnished no painters to the Employer thereafter
ZOnly Barron testified to this Saylor did not hear Barron's side of the telephone conver-
sation. A statement signed by Barron for the field examiner investigating the case gives a
different version of the conversation, but Barron testified that it had not been correctly
transcribed.
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS 1259
McDaniels and Saylor filed charges on June 9, and on June 11 the Employer entered into a
settlement agreement by the terms of which he agreed to employ McDaniels and Saylor. They
started work on June 15 and brought with them another painter who, like Saylor, had made an
affidavit on McDaniels' behalf, and Trice hired him, too.
Once thereafter, the Employer laid McDaniels and Saylor off, but reinstated them at the
instance of a Board representative. 3 Although evidence conceruing the incident creates a
suspicion that the reason given for the layoff might have been specious and that the original
reason for not hiring them induced the Employer to lay them off, the evidence is not sufficient
to warrant an inference to that effect and there was no evidence that the Respondent, by any
affirmative act after June 15, caused or attempted to cause the Employer to discriminate
against them.
2. Concluding findings
The evidence as a whole establishes the factthat before June 8, 1953, the Employer had em-
ployed only men referred by, or known or assumed to be approved by, the Respondent.4 When
McDaniels and Saylor first applied to Barron for work, the latter expressed willingness to
hire them despite their trouble with the Respondent. Whether Barron was sincere in his state-
ment or was just protecting the Employer by such expression of willingness is difficult to
determine. If he did mean it at the time he said it, I conclude that he changed his mind there-
after. I am not convinced that Barron hesitated to hire Saylor when the latter applied for work
by himself on June 5 because of a commitment previously made to Allen. Barron's testimony
concerning a request for men before June 5 was given with a lack of certainty and did not
carry conviction. He first testified that he called Allen "sometime during the week ... told
him our lumber had come in, we were going to need some men ...." Later he testified that
he placed the call "I think it was after my lumber come in. I believe my lumber come in after
Saylor and McDaniels were out there." He also testified that he did not ask Allen for men at
once, "I told him I wanted them, I wanted them later in the week, that by that time the car-
penter had his lumber then and would be that much ahead, so I could use some more men." It
is significant that, according to such testimony, Barron was indefinite both as to the number of
men needed and as to the precise day when he needed them. The communication, even if made,
appeared to have been more of a notice to expect a future request. When Barron telephoned
Allen on the morning of June 5, at the time Saylor applied for work alone. Barron told Allen
he was calling because Saylor was applying for work and if Allen was not sending men out
he was going to hire him. If Barron was only concerned with the problem of having more men
than he needed (which, in view of his difficulty in getting men, seems improbable), and if a
definite promise had previously been given by Allen to dispatch two men to the Employer
(which is doubtful), Barron's inquiry would be expected to be merely whether the two painters
requested had already been notified by Allen to report that day. If Allen's response were in
the affirmative, Barron would have had no occasion for mentioning Saylor's name at all. Even
if Barron had seen fit totellAllenthat a man was then applying for work, it seems improbable
that Barron would have named Saylor specifically unless he had reason to believe that Allen
was interested in the identity of the applicant.5 Barron 'sstatement to Allen that he was going to
hire Saylor if Allen was not sending men out indicates some reason for doubt on Barron's
part that Allen would be able to supply any help. Reason for such doubt is shown by Barron's
testimony that they got men from the Employer's Fort Worth operations . And he testified:
"We could not hardly get labor down here [at El Paso] .... I think all Mr. Allen sent me was
two men. We asked him for men different times , he didn't have them.... He told me he
could not locate anybody for us, and I just got them elsewhere " Barron's statement to Allen
3Respondent's counsel, rather than General Counsel, adduced such evidence, but because
of the allegation of the complaint that the Respondent "thereafter caused the Employer to
continue to discriminate," I mention this evidence.
4In testifying about such matters, Barron, himself a member of a local of the Respondent's
parent organization, tended to shade his testimony noticeably in favor of the Respondent. I do
not find his testimony reliable in all instances.
5As previously stated, Barron's statement made for the field examiner on June 18, 1953,
related his June 5 conversation with Allen indifferent form from his testimony of it. Although
I do not rely on the contradicted portion of Barron's June 18 statement, the fact that that
statement appears to give a more plausible account of Barron's conversation with Allen on
June 5 is one of a number of things that lead to the conclusion that Barron was seeking to
avoid testifying in a manner injurious to the Respondent.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was going to hire Saylor if Allen was not sending men also suggests that Barron was
notifying Allen that he needed help so badly that, even without Allen's approval of Saylor, he
was going to have to hire him if Allen did not send someone else. Only one painter appeared
that Friday, a man named Blakely, and he did not report until afternoon. This man was the
only one hired on that job who, to Barron's knowledge, had a referral slip from Allen. 6
Barron's testimony that he was informed that a second painter sent by Allen had been looking
for him on Monday morning but never reported to him was not convincing, and I make no
finding that Allen in fact sent a second painter to the Employer on June 5. All the circum-
stances surrounding Saylor's June 5 application, especially when considered in conjunction
with the evidence of the events occurring in the following week, convince me, and I find, that
Barron called Allen and identified Saylor as the applicant for work in order to learn if Allen
would approve the hiring of Saylor. As Saylor was a paidup member of the Union, it would not
be unnatural for Barron to suppose that, despite Tippet's warning, Allen might approve of
Saylor if McDaniels were not along. Allen did not expressly disapprove of Saylor, but he did
not have to in order to convince Barron that he did. Barron knew that Allen was having dif-
ficulty finding men. The fact thatAllen would refuse to approve Saylor, who was ready to work,
by telling Barron that he was sending someone else, would suffice to inform Barron that the
Respondent would not authorize Saylor's employment. Considering the fact that Blakely did
not arrive on the job until afternoon , it is inferrible that Allen contacted that painter after his
conversation with Barron on June 5 to assure that Saylor was not employed. Barron's
testimony concerning the excuse made by Blakely for his late arrival did not sound like it was
given from actual recollection, and I do not credit it. The evidence as a whole convinces me,
and I find, that by the communications of Tippet and Allen, the Respondent caused the Employer
not to hire Saylor on June 5, 1953.
On June 8, the day that McDaniels and Saylor together applied for work, the Employer, pur-
suant to a decision reached on the previous Friday evening, discharged Tippet, the steward,
and Munoz. With help as difficult to getas it was, the determination to discharge two men who
had already worked for more than a week indicates either that these painters had become so
hopeless as to necessitate their discharge or that they were the men from whom the Employer
anticipated trouble in the event of the hiring of McDaniels and Saylor. There is some indica-
tion that Trice was sympathetic toward McDaniels and Saylor and intended to follow a plan of
action which might make it possible to employ them provided the Respondent's objection to
their employment could be obviated by getting a concession from the Respondent that it was
unable to furnish any more labor. The first step was a notification to Allen on Friday evening,
after the decision was reached to discharge Tippet and Munoz, that the Employer would need
two more men. That the Employer anticipated an admission by Allen that the Respondent
was unable to furnish men may be inferred from the manner in which Trice told McDaniels
and Saylor on Monday, June 8, to come back on Tuesday . If the Employer had not been under
constraint, I am convinced that McDaniels and Saylor would have been employed on Monday
morning, June 8. if not before . It is significant that the Employer unhesitatingly hired a painter
from Fort Worth on Monday morning, June 8, but put McDaniels and Saylor off until the next
day. When Allen came that afternoon, Trice asked him if he was going to supply the needed
men. Knowing that Saylor, if not McDaniels too, was looking for work, Allen did not suggest
that either of them be hired. Rather, he said he would get the Employer two men even if he
had to steal them from another contractor. There was no necessity for labor larceny if the
Respondent , through Alleh, were not withholding approval of the employment of McDaniels and
Saylor.
As badly as the Employer needed men, Trice, without even checking on Tuesday morning,
June 9, to see if Allen had sent the "stolen" painters, told McDaniels and Saylor that he had
2 or 3 new men and could not use them (McDaniels and Saylor). Unlike his conduct on Monday,
he neither asked McDaniels and Saylor to wait until he checked nor told them to come back
later. His answer was final--he could not use them. The only plausible explanation for his
change in attitude is that he had been given to understand by Allen 's statement about getting
2 men if he had to steal them from another contractor that the Respondent would not approve
of the hiring of the 2 men already out of work, McDaniels and Saylor.
That the Employer failed and refused to hire McDaniels and Saylor before June 15, 1953,
because they were in disfavor with the Respondent is clear. But in an apparent effort to ab-
solve the Respondent from causal connection therewith, Trice testified: "There was nothing
ever said about out and out refusing to hire them on account of that [their "squabble" with the
Respondent], or being afraid to hire them. If there was any fear created in my mind about
6 The first man referred by Allen was hired by Trice while Barron was in the hospital
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS 1261
hiring them it was created by them on information volunteered to us ." I deduce that any
fear that Trice may have had was fear of a strike or concerted refusal by union members to
work with McDaniels and Saylor or fear of otherwise falling into the Respondent 's disfavor
with the result that the Employer would be unable to get painters through the Respondent even
when they were available . Although Trice testified only conditionally to having such a fear, I
find the evidence adequate to warrant an inference that the fear existed not only in his own
but also in Barron's mind.
Such a fear could have been induced by a belief based on prior experiences , on general
knowledge of the operations of the Respondent and affiliated organizations ,l or on specific
statements made by Respondent 's agents to Barron and Trice . Because the Employer exhibited
a fear of hiring Saylor, who was a paidup member although in disfavor with the Respondent,
only the last ground would explain the fear. Both Tippet , by his express warning to Barron,
and Allen , by his tacit disapproval of Saylor and McDaniels , made it clear to the Employer
that the latter would incur the Respondent 's displeasure with injurious consequences, the
foremost of which was the threat expressed by Tippet. On all the evidence I am convinced and
find that the Respondent attempted to and did cause the Employer to discriminate against
Saylor and McDaniels by refusing to hire Saylor on June 5, 1953, and both McDaniels and
Saylor on June 8, 1953, and thereafter until June 11, 1953, (when the Employer offered them
employment as previously related ) in violation of Section 8 (a) (3) of the Act and thereby re-
strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act.
The Respondent in its brief argues that "there must be a denial or a termination of union
membership before Section 8 (b) (2) can be violated ." This argument overlooks the fact that
the language of Section 8 (b) (2) is in the alternative. The Respondent mentions only the second
alternative . Saylor, although a union member, was disposed to be a nonconformist . He refused
to join any concerted action to keep a nonmember , McDaniels , from working. Under Section 7
of the Act this was his privilege . Itmay also have been the privilege of the Respondent to dis-
cipline him therefore , if it chose, according to internal union regulations , but the Respondent
was not privileged to interfere with the hire or tenure of his or McDaniels ' employment,
absent a lawful union-security agreement.
The Respondent also argues that no violation can be found because McDaniels and Saylor
were neither encouraged nor discouraged with respect to membership in a labor organiza-
tion by a discrimination against them and that therefore the Respondent cannot be found to
have caused the Employer to violate Section 8 (a) (3) of the Act . The mere fact that McDaniels
and Saylor did not change their union status or desire for union membership after the dis-
crimination against them cannot be taken as a test. The natural tendency of such unlawful
conduct is to encourage employees generally to become or remain members of the Respondent
labor organization .8 Furthermore , it cannot be denied that the unremedied unfair labor
practice might tend to induce even Saylor and McDaniels to desire union membership where
it would not if such unlawful conduct in the future were prevented by a remedial Board order.
As long as the Respondent has the power to determine whether employees will be hired or re-
tained in employment conditional on membership, membership in good standing , or conformity
with union rules , the natural tendency will be to encourage those desiring employment to com-
ply with such conditions . But the Act limits the right to discriminate for the purpose of en-
couraging membership in a labor organization to those cases where there is a lawful union-
security contract. There was none in this case . Consequently I find no merit in the Re-
spondent 's argument.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection with
the operations of the Employer set for in section I, above , have a close , intimate , and sub-
stantial relation to trade, traffic , and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
7See Trial Examiner 's Intermediate Report in Brotherhood of Painters, Decorators &
Paperhangers , Local 365, and Hugh J. Smith, its business agent (Orange State Painters,
Inc.), 107 NLRB No. 93, finding unlawful practices affecting employment at another location.
8 See N. L. R. B. v. Radio Officers' Union, 196 F. 2d 960 (C. A. 2), enfg. 93 NLRB 1523;
N. L. R. B. v. Gaynor News Co., 197 F. 2d 719 (C. A. 2), enfg. 93 NLRB 299.
337593 0 - 55 - 81
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices It will be recom-
mended therefore, that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. _
It has been found that the Respondent caused the Employer to discriminate against G. J.
McDaniels and Earl Saylor in regard to their hire and tenure of employment, thereby en-
couraging membership in the Respondent. Since it has beeii found that, as a result of the
Respondent's unfair labor practices, Saylor was deprived of employment from June 5 to 11,
1953, and that G. J McDaniels was deprived of employment from June 8 to 11, 1953, it will be
recommended that the Respondent make them whole for any loss suffered by them by reason
of the discrimination against them by paying them a sum of money which they would have
earned in the Employer's employ for said respective periods, less their net earnings9
elsewhere, if any, during such period. Such loss of pay shall be computed in accordance with
the formula established by the Board in F. W. Woolworth Co , 90 NLRB 289.
The unfair labor practices found to have been engaged in by the Respondent herein and in the
related case hereinbefore mentioned are of such character and scope that, in order to insure
employees and prospective employees the full rights guaranteed them by the Act, it will be
recommended that the Respondent cease and desist from in any manner restraining or co-
ercing employees or prospective employees of the Employer in the exercise of the rights
guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The employer is engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act
2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act.
3 By causing the Employer to discriminate against G. J McDamels and Earl Saylor in
violation of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4 By restraining and coercing G. J. McDaniels and Earl Saylor, as applicants for employ-
ment with the Employer, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
9Crossett Lumber Co., 8 NLRB 440.
APPENDIX
TO ALL MEMBERS OF BROTHERHOOD OF PAINTERS,
DECORATORS & PAPERHANGERS OF AMERICA,
LOCAL 902, AFL, AND TO ALL EMPLOYEES OF,
AND APPLICANTS FOR EMPLOYMENT WITH,
PAUL W. TRICE AND J. L. TRICE
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 Relations Act, as amended,
we hereby notify you that:
WE WILL NOT cause or attempt to cause Paul W. Trice and J. L. Trice, their agents,
successors , or assigns , to refuse to employ , or otherwise to discriminate against, G J
McDaniels or Earl Saylor in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of, or applicants for em-
ployment with, Paul W. Trice and J. L. Trice, their successors , or assigns, in the
exercise of their right to self-organization , to form, join , or assist labor organizations,
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 an agreement requiring membership in a labor organization as
a condition of employment , as authorized in Section 8 (a) (3) of said A&
WESTERN AREA HOUSING COMPANY 1263
WE WILL make whole G. J. McDaniels and Earl Saylor for any loss of pay suffered
by them as a result of the discrimination against them.
PAINTERS. DECORATORS & PAPERHANGERS
OF AMERICA, LOCAL 902, AFL,
Labor Organization.
Dated . ............... By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
WESTERN AREA HOUSING COMPANY and SOUTHERN CALI-
FORNIA DISTRICT COUNCIL OF LABORERS AND AFFIL-
IATED LOCAL NO. 89 OF SAN DIEGO, CALIFORNIA,
A.F.L., Petitioner, Case No. 21-RC-3335. February 24, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Floyd C.
Brewer, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
The Employer, a California corporation, owns and operates
a housing project in San Diego, California, which has 895
rental units. The project was privately constructed, according
to designs prepared by the Navy Department, after the Navy
Department had, in accordance with the provisions of the
Wherry Act, under which the project was built, certified to
the need for additional housing in San Diego.
By virtue of a written agreement between the Employer and
the Navy Department, Navy personnel and civilian employees
of the Navy Department have priority rights to the Employer's
rental units. The maximum rentals for the apartments are reg-
ulated by the Federal Housing Administration and any changes
in the rent must be approved by the Navy Department.
The Employer's project is now almost occupied. Of the
approximately 850 families residing therein, about 750 families
are "either directly or immediately connected with the U. S.
Navy in one or other of its branches." The Employer' s gross
income from rentals has averagedbetween $68,000 and $71,000
per month. All the items required by the Employer to maintain
the project, such as paint, glass, and cleaning solvents, are
purchased locally in an unspecified amount. The record does
not disclose whether any of these supplies originate out of
State.
163 Stat. 570.
107 NLRB No. 264.