Brunswick Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1962

135 N.L.R.B. 574 (N.L.R.B. 1962)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brunswick Corporation 1 and Frederick G. Barden
Local Union 65, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO and Frederick G. Barden . Cases Nos.
22-CA-510 and 22-CB-219. March 2, 1962
ORDER
On April 20, 1961, a three-member panel of the Board issued a
Decision and Order a in the above-entitled proceeding, and on April
24, 1961, a correction thereto. Thereafter, the full Board, acting on
its own motion in the interest of clarification, reconsidered the decision
of the panel, and on January 25,1962, issued a Proposed Supplemental
Decision and Order, attached hereto, as corrected on January 30, 1962,
sustaining the original Decision and Order and making certain pro-
posed supplemental findings. No exceptions having been filed to the
Proposed Supplemental Decision and Order, as corrected, and the time
for such filing having expired,
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its final Order herein the
said Proposed Supplemental Decision and Order, as corrected.
1 Formerly Brunswick -Balke-Collender Company.
2131 NLRB 156.
Cases Nos. 22-CA-510 and 22-CB-219. January 25, 1962
PROPOSED SUPPLEMENTAL DECISION AND ORDER
On June 17, 1960, Trial Examiner John C. Fisher issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent Brunswick-Balke-Collender Company, hereinafter referred to as
the Respondent Company, had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Intermedi-
ate Report (131 NLRB 156). He also found that Local Union 65,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, hereinafter referred to as the Respondent Union, did not commit
the unfair labor practices alleged and recommended that the complaint
be dismissed in its entirety as to it. Thereafter the Respondent Com-
pany and the General Counsel filed exceptions to the Intermediate
Report together with supporting briefs, and the Respondent Union
filed a brief in support of the Intermediate Report.
On April 20, 1961, a panel of the Board, exercising powers dele-
gated to it by the Board pursuant to the provisions of Section 3 (b)
of the Act, issued its Decision and Order 1 finding that the Respondent
1131 NLRB 156. Subsequently on April 24, 1961, the Board issued an order correcting
Decision and Order.
135 NLRB No. 59.
BRUNSWICK CORPORATION ' 575
Company and the Respondent Union had committed the unfair labor
practices alleged in the complaint and ordering Respondents to cease
and desist therefrom and to take certain affirmative action to remedy,
the effect of such unfair labor practices.
The Board acting on its own motion, in the interests of clarification,
has decided to reconsider the decision of the panel.
. The Board, having reconsidered the matter, sustains the original
Decision and Order of the panel as noted herein, and, as a basis there-
fore, makes the following proposed supplemental findings : 2
1. The complaint alleges that Respondent Union caused the Re-
spondent. Company to discharge Barden and the Respondent Com-
pany did discharge Barden from its Carteret, New Jersey, jobsite in
violation of the Act.
The facts relating to Barden's discharge are as follows: Barden, a
member of Camden Local 393 of the Carpenters, applied to Lesley
Byrd, business agent of Respondent Union, in mid-July 1959, for a
referral slip to Respondent Company.'s jobsite at Carteret, New Jer-
sey. Two weeks later Byrd gave Barden a referral slip to the attention
of Steward Neal Anderson at Carteret Lanes. Barden reported to
Anderson, who entered his name in his union record book, gave him a
work permit upon Barden's payment of $6.25, 'and assigned him to
work which comprised primarily the laying of bowling alleys.
On Thursday, August 7, just before quitting time, Superintendent
Paul Bangston ordered Barden to cease his carpentry work and to
put away the electric cords, drills, and power equipment. The follow-
ing morning, Steward Anderson, acting pursuant to instructions from
Business Agent Byrd, called the carpenters together and told them:
"This business about you people quitting early, you guys quitting early
has got to stop. I am the shop steward in the shop. And when I blow
the whistle in the morning, you start work; and when I blow the
whistle at night you quit. And you don't quit before that." Barden,
thinking the remarks were aimed specifically at him, spoke up'and told
Anderson that Bangston had ordered him to knock off early the day
before to put some equipment away. Anderson then said to'Barden,
"You are a wise guy. Get out of here. You are fired. Here is your
$6.25 back. Give me your working permit. I am firing you as a shop
steward for Local 65." There followed a heated discussion between
Anderson and Barden. Barden finally appealed to Foreman Fred,
who said, "What can I do? I can't do anything. If you are fired,
you're fired." After taking back Barden's work permit and returning
2 Chairman McCulloch and Member Brown, who did not participate in the original panel
decision , have considered the entire record in this proceeding , including the Intermedmle
Report, the exceptions , and the briefs . They have reviewed the rulings made by the Trial
Examiner at the hearing and find that no prejudicial error was committed In agreement
with the members of the panel, they affirm such rulings. Also, in agreement with the
panel , they deny Respondent Company's request for oral argument as the record in these
cases and the briefs of the parties adequately present the issues for decision
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his $6.25, but before Barden left the premises, Anderson called Busi-
ness Agent Byrd, who told him not to let Barden leave, and to put him
back to work. Anderson did so, giving Barden back his work permit
and receiving again the $6.25 payment therefor. Byrd came out to
the'jobsite,.in an effort to'smooth things over, and told Barden he
should not take exception to an old man who was only doing his job.
Barden worked the remainder of the day and on Saturday morning.
He reported to work; on Monday morning and was greeted by Ander-
son who said, "Paul Bangston will be in after awhile and make your
check out. You're fired. I am getting rid of you. I told you I
would." However, Bangston did not come to work that day. But on
the next day, Tuesday, August 12, he called Barden into the office and
said, "Look Fred, I have to get rid of you. I don't want to but we are
behind schedule here. We are late and I cannot have any trouble here
with Anderson or Les Byrd. I've got to get rid of you or they will
shut the job down." Bangston volunteered to call up the business
agent of the Hackensack Local, to which he belonged, to see if Barden
could be put to work on a Brunswick project up there. Barden re-
quested Bangston to get him a job on Brunswick's Edison project but
Bangston refused because that job was in Byrd's district and there
would be trouble there. Barden was then paid off and discharged from
the Carteret job. As he left the premises, Anderson said to him, "Now
get your stuff and get out of here. - I don't want to see you back on
this job again."
Later that .day Bangston drove Barden over to the Somerville
project of Respondent Company, where he started work the next day
and worked until completion of the project.
Based on the foregoing, we find that Respondent Union violated
Section 8(b) (2) and (1) (A), and Respondent Company violated
Sections 8(a) (3) and (1) of the Act'by the discharge of Barden from
Carteret, New Jersey, jobsite on August 12, 1959? It is clear that the
discharge occurred as the direct result of pressures brought by Union
Steward Neal Anderson on August 8, 11, and 12, 1959, and was made
in order to avoid trouble with Respondent Union and to prevent a
shutdown of the job which Respondent Company feared would occur
if Barden stayed on the job. Anderson's attempted "firing" of Barden
on Friday, August 8, was done specifically in his capacity as union
steward, and was in furtherance of the discharge of his responsibility
as steward, to maintain control over the starting and quitting times
8 We find no merit in Respondent Company's claim that Barden was not discharged but
was merely transferred . It is clear that Barden was discharged from the Carteret job,
and was denied employment on other jobs within the jurisdiction of Local 65 Moreover,
whether viewed as a discharge or a transfer for discriminatory reasons, we find that
Respondent Company violated Section 8 ( a) (3) in this connection , for the reasons set
forth below.
BRUNSWICK CORPORATION 577
of employees on the project as he was instructed to do by Business
Agent Byrd. Though Anderson later rescinded his action, at the
instigation of Byrd, and put Barden back to work, it nowhere appears
that Byrd repudiated or rescinded Anderson's authority to do what
he thought necessary to maintain union discipline on the job. Indeed,.
it affirmatively appears that Byrd told Barden he should not take
exception to Anderson's performance of his duty as steward. Conse-
quently, as it is readily apparent that Anderson's actions on August
11 and 12, which resulted in the discharge of Barden, were, but a con-
tinuation and outgrowth of the August 8 incident, and were further
attempts on the part of Anderson to exert his authority as steward to.
enforce starting and quitting times' and maintain union discipline, we
find that Respondent Union is responsible for such actions. As such.
actions caused Respondent Company to discriminate against Barden
because of his failure to perform obligations imposed by Respondent
Union on its members and work permit holders, we find that Respond-
ent Union violated Section 8(b) (2) and (1) (A) of the Act,' and,
Respondent Company's acquiescence therein violated Section 8(a) (3),
and (1) of the Act.' -
. 2. We further find, on the basis of Barden's credited testimony, that
the Respondent Company again violated Sections 8(a) (3) and (1),.
and also violated Section 8(a) (4), on or about September 28, 1959,,
by its refusal to employ Barden at its jobsite in Englewood Cliffs, New
Jersey, because of his continued refusal to withdraw his charges;
against the Respondent Union. On the basis of such testimony, it is
clear that General Service Superintendent Young conditioned em-
ployment of Barden at the Englewood Cliffs job on Barden's with-
drawal of his charges against Respondent Union, and that but for-
Barden's failure to withdraw his charges he would have been employed
there on or about September 28, 1959. In view of this finding, we,
deem it unnecessary to pass upon whether Barden's discharge from the,
Bronx River job on Friday, September 25, was also a violation of
the Act as found by the Trial Examiner.
* This case is factually distinguishable from Daugherty Company, Inc, 11,2 NLRB 986;
and International Longshoremen 's and Warehousemen 's Union, Local No. 10, Independent,
et al. ( Pacific Maritime Association ), 121 NLRB 938
5 The Radio Officers' Union of the Commercial Telegraphers Union, AFL ( A. B. Bull'
Steamship Company ) v. N.L.R .B., 347 U.S. 17 . Barden's discharge under the circum-
stances of this case inherently encouraged Barden and other employees to, accept the,
authority of the steward to enforce compliance with regulations imposed, by the Respond;
ent Union. Neither of the Respondents contend, nor does the record show , that Steward',
Anderson 's enforcement of starting and quitting times was in accordance with the provi-
sions of a contract or agreement whereby the Respondent Union , was delegated such
authority . Rather , as noted above, on this record it appears that Anderson was enforcing-
a union rule which the union members under his jurisdiction were , obligated to follow.
Cf. Local $57, International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and'
Helpers of America v. N.L R B , 365 U.S. 667.
634449-62-vol. 135-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PROPOSED SUPPLEMENTAL ORDER
As the Remedy and Order of the original Decision and Order of the
panel, as corrected, are not inconsistent with our findings herein, we
hereby adopt them as part of this Proposed Supplemental Decision
and Order, except that in paragraphs A, 2 (f), and B`, 2 (f), the figure
"20" shall be substituted for the figure "10." 6
MEMBER RODGERS, concurring :
I concur in the result solely on the basis of the Board's original
decision herein.
9 The parties are hereby given 20 days from the date of this Order to file exceptions to
this Proposed Supplemental Decision and Order, together with supporting briefs
Local 825, International Union of Operating Engineers, AFL-
CIO [R . G. Maupai Co., Inc.] and Mechanical Contractors
Association of New Jersey, Inc. Case No. 22-CC-90. Janu-
ary 26, 1962
DECISION AND ORDER
On January 23, 1961, Trial Examiner John F. Funke issued his
Intermediate Report herein, finding that Respondent had not engaged
in certain unfair labor practices alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Charging Party filed exceptions to the Intermediate
Report together with 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 [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions of the General Counsel
and the-Charging Party.
The complaint alleged that the Respondent Union violated Section
8(b) (4) (i) and (ii) (B) of the Act by inducing and encouraging
employees of Henry Ernst, Jr., and John Ochs, subcontractors of
R. G. Maupai, Inc., to strike, and by refusing to refer men to work for
Ernst and Ochs, all for the purpose of forcing Ernst and Ochs to
cease doing business with Maupai, and to force Maupai to recognize
the Respondent Union.
The Trial Examiner recommended that the complaint be dismissed
in its entirety, because he found that Respondent was not responsible
135 NLRB No. 62.