C. A. Batson Co.

National Labor Relations Board - Board Decisions

Jun 15, 1954

108 N.L.R.B. 1337 (N.L.R.B. 1954)

C. A. BATSON CO. 1337
employees of Chester Milostan & Son and employees of Sunset Lumber Company to engage in
a strike or concerted refusal in the course of their employment to handle or work on goods,
articles , materials , or commodities or to perform services for their respective employers,
objects thereof being (a) to force and require C. T. K. Real Estate Corporation and Blount
Lumber Company to cease doing business with Jay-K Independent Lumber Corp ., and (b) to
force the said Jay-K Independent Lumber Corp ., to recognize or bargain with Local 182
Teamsters as the collective-bargaining representative of its employees although Local 182
Teamsters was not certified as the bargaining agent of these employees in accordance with
the provisions of Section 9 of the Act.
3. Mohawk Valley District Council , United Brotherhood of Carpenters and Joiners of
America , AFL, and its affiliate United Brotherhood of Carpenters and Joiners of America,
Local 125, AFL , have engaged in unfair labor practices within the meaning of Section 8 (b) (4)
(A) and ( B) of the Act by inducing and encouraging employees of Chester Milostan & Son to
engage in a strike or concerted refusal in the course of their employment to use , handle or
work on goods , articles , materials , or commodities or to perform services for their em-
ployers, objects thereof being (a) to force and require C. T. K. Real Estate Corporation to
cease doing business with Jay-K Independent Lumber Corps ., and (b) to force and require
Jay-K Independent Lumber Corp ., to recognize and bargain with Local 125 Carpenters as the
collective bargaining representative of its employees although Local 125 Carpenters was not
certified as the bargaining agent of these employees in accordance with the provisions of
Section 9 of the Act.
4. 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.]
C. A. BATSON CO. and JAMES G. HEBSHIE
LOCAL 721, INTERNATIONAL HOD CARRIERS , BUILDING
& COMMON LABORERS UNION OF AMERICA , A.F.L.
and JAMES G. HEBSHIE . Cases Nos. 1 - CA-1479 and 1-
CB-236 . June 15, 1954
DECISION AND ORDER
On February 19, 1954, Trial Examiner Stephen S. Bean
issued his Intermediate Report in the above - titled proceedings,
finding that the Respondents had engaged in certain unfair
labor practices , and recommending that they cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent Company and the Respondent Union
filed exceptions to the Intermediate Report and supporting
briefs , and the General Counsel filed a brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed . The Board has
considered the Intermediate Report , the exceptions and briefs,
and the entire record in the cases , and hereby adopts the
findings , conclusions , and recommendations of the Trial
Examiner with the following additions and modifications.
1. As did the Trial Examiner , the Board finds that the Com-
pany is engaged in commerce within the meaning of the Act,
108 NLRB No. 194.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it will effectuate the policies of the Act to exercise
jurisdiction in this case.'
The Board ' s exercise of jurisdiction is based upon the
Company ' s construction services , valued at $136,790 for the
April 1, 1952, to March 31, 1953, period, to the American
Optical Company, Commonwealth Shoe Company, and the
Brockton National Bank , companies engaged in commerce within
the meaning of the Act. We do not, however , consider the
Respondent -- C. A. Batson Co.--and the Batson Building Supply
Company as a single integrated enterprise and a single employer
for the purposes of determining jurisdiction . Although Harriet
Batson is treasurer of both companies , Robert Batson , president
and general manager of the Respondent Company, is not an
officer of the Batson Supply Company . Nor is his brother, John
Batson , who runs the Batson Supply Company, an officer in
the Respondent Company. Robert Batson owns a majority
of the voting stock in the Respondent Company but holds no
voting stock in Batson Supply , in which he does hold 200 shares
of the 810 outstanding nonvoting shares . Uncontroverted testi-
mony shows that Robert Batson has no part in the operation
of the Batson Supply Company , and that John Batson does not
participate in the management of the Respondent Company.
Under these circumstances the Board does not consider the
two companies as a single enterprise for the purposes of
exercising jurisdiction . ( Compare Rushville Metal Products,
Inc., 107 NLRB 1146.)
2. The Board agrees with the Trial Examiner in his
conclusion that the Union violated Section 8 (b) (2) and 8
(b) (1) (A) of the Act by its execution , maintenance, and
enforcement of its closed - shop contract with the Company.
In reaching the conclusion that the contract contained an
unlawful closed - shop provision , we rely not only upon section
2 of article I of the contract but also upon section Z of article
V, which reads:
The Steward shall be appointed by the Business Repre-
sentative to carry full power to see that all Laborers
carry a union card. He shall work all overtime when
possible worked to carry out the duties of Steward.
ORDER
Upon the entire record in the cases , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board ordes that:
I. The Respondent , C. A. Batson Co., Brockton , Massachu-
setts , and its officers , agents , successors , and assigns , shall:
'By the assertion of jurisdiction in this case, Chairman Farmer and Members Rodgers and
Beeson are not to be deemed as agreeing with the Board ' s jurisdictional standards as a per-
manent policy.
C. A. BATSON CO. 1339
(a) Cease and desist from:
(1) Encouraging membership in Local 721, International
Hod Carriers, Building & Common Laborers Union of America,
A.F.L., or in any other labor organization of its employees,
by discharging any of its employees or discriminating in any
other manner in respect to the hire and tenure of employment
or any term or condition of employment, except to the extent
that such acts on its part are justified under an agreement
requiring membership in a labor organization as a condition
of continuing employment as authorized by Section 8 (a) (3) of
the Act.
(2) In any like or related manner interfering with , restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act 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 by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Jointly and severally with the Respondent Union make
whole James G. Hebshie and Fred Hebshie in the manner set
forth in the section of the Intermediate Report entitled
"The Remedy."
(2) Upon request make available to the Board or its agents,
for examination and copying, all payroll records , social-
security payments records , timecards , personnel record's, and
reports and all other records necessary to analyze the amounts
of back pay under the terms of the Order.
(3) Post at its office in Brockton , Massachusetts , copies of
the notice attached hereto as AppendixA.2 Copies of said notice,
to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Employer ' s representative,
be posted by it immediately upon receipt thereof, and conspic-
uously maintained by it for sixty (60) consecutive days there-
after in all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
Company to insure that such notices are not altered, defaced,
or covered by any other material.
(4) Notify the Regional Director for the First Region,
in writing, within ten (10) days from the date of this Order
what steps it has taken to comply herewith.
II. Local 721, International Hod Carriers, Building & Com-
mon Laborers Union of America, A.F.L., and its officers,
representatives, and agents shall:
(a) Cease and desist from:
(1) Executing or enforcing any agreement with C. A. Batson
Co. or with any other employer within the meaning of the Act,
2In 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."
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which requires , as a condition of employment , membership
in Respondent Union or has the effect of inducing C. A. Batson
Company or any other employer to discriminate in regard to
the terms or conditions of hire or tenure of employment against
employees by reason of membership or nonmembership in
Respondent Union , unless such agreement has been authorized
as provided by the Act.
(2) Causing or attempting to cause C . A. Batson Co., its
officers , agents , successors , or assigns, or any other em-
ployer to discharge or otherwise discriminate against its
employees in violation of Section 8 (a) (3) of the Act.
(3) In any manner restraining or coercing employees of the
C. A. Batson Co., its successors or assigns or any other
employer , in the exercise of the rights guaranteed in Section
7 of the Act , except as such rights may be affected by an
agreement authorized under the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Jointly and severally with the Respondent Company
make whole James G. Hebshie and Fred Hebshie in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy."
(2) Post at the office of Local 721 in Brockton , Massachusetts,
copies of the notice attached hereto and marked "Appendix
B." 9 Copies of said notice to be furnished by the Regional
Director for the First Region , shall , after being duly signed by
representatives of the Respondent Union , be posted by it
immediately upon receipt thereof and conspicuously maintained
by it for a period of sixty ( 60) consecutive days thereafter
in all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
Union to insure that such notices are not altered , defaced,
or covered by any other material.
(3) Mail to the Regional Director for the First Region , signed
copies of the notice attached hereto as Appendix B, for posting,
C. A. Batson Co. willing , at the office and place of business
of Batson in Brockton , Massachusetts , in places where notices
to employees are customarily posted . Copies of said notice
to be furnished by the Regional Director for the First Region,
shall , after being signed by Respondent Union ' s representative,
be forthwith returned to the Regional Director for posting for
a period of sixty ( 60) consecutive days.
(4) Notify the Regional Director for the First Region, in
writing, within ten (10 ) days from the date of this Order what
steps it has taken to comply herewith.
3In 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."
C. A. BATSON CO . 1341
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 em-
ployees that:
WE WILL NOT encourage membership in Local 721,
International Hod Carriers, Building and Common Laborers
Union of America, A.F.L., or in any other labor organiza-
tion of our employees by discharging employees or in
any other manner discriminating in regard to the tenure
of their employment or terms or conditions of their em-
ployment, except to the extent that such acts on our part
are justified under an agreement requiring membership
as a condition of continuing employment as authorized
by Section 8 (a) (3) of the Act.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of rights under
Section 7 of the Act, except to the extent that such right
may be affected by a valid agreement requiring member-
ship in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
WE WILL jointly and severally with Local 721, Inter-
national Hod Carriers, Building and Common Laborers
Union of America, A.F.L., make whole James G. Hebshie
and Fred Hebshie for any loss of pay suffered as a result
of the discrimination against them.
All our employees are free to become or remain members of
the above -named labor organization, or any other labor organiza-
tion, or to refrain from such activities except to the extent
that such right may affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
C. A. BATSON GO.,
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.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
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:
WE WILL NOT execute or enforce any agreement with
C. A. Batson Co. or with any other employer which re-
quires, as a condition of employment, membership in our
union or has the effect of inducing C. A. Batson Co. or
any other employer to discriminate in any other manner
in regard to the hire or tenure of employment or terms
or conditions of employment in violation of Section 8
(a) (3) of the Act, except in the manner and to the extent
authorized in said Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause C. A. Batson
Co. or any other employer to discharge or in any manner
to discriminate against its employees in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of C. A.
Batson Co. or any other employer in the exercise of their
rights under Section 7 of the Act, 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 by Section 8 (a) (3) of the Act.
WE WILL jointly and severally with C. A. Batson
Co. make whole James G. Hebshie and Fred Hebshie for
any loss of pay suffered as a result of the discrimination
against them.
LOCAL 721 , INTERNATIONAL HOD
CARRIERS, BUILDING & COMMON
LABORERS UNION OF AMERICA,
A.F.L.,
Labor Organization.
Dated ................ By....................................................
Title of Officer.
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
C. A. BATSON CO.
Intermediate Report
STATEMENT OF THE CASE
1343
On August 7, 1953, upon charges duly filed by James G. Hebshie in each of the above-
entitled cases, the General Counsel of the National Labor Relations Board, by the Regional
Director for the First Region (Boston, Massachusetts), issued an order consolidating the
cases, a notice of hearing, and complaints allegingthat C. A. Batson Co. and Local 721, Inter-
national Hod Carriers, Building & Common Laborers Union of America, A.F.L (herein
called the Company and the Union respectively, and sometimes also referred to jointly as the
Respondents), have engaged in and are engaging in various unfair labor practices affecting
commerce within the meaning of Section 8 and Section 2 (6) and (7) of the National Labor
Relations Act as amended, 61 Stat. 136, herem referred to as the Act.
With respect to the unfair labor practices the consolidated complaint alleges that:
1. Since on or about June 12, 1953, the Union has restrained and coerced employees of
the Company in the exercise or rights guaranteed in Section 7 of the Act by:
(a) Executing a written agreement with the Company which required, as a condition of
employment, membership in the Union.
(b) Executing a written agreement with the Company which requires or has the effect
of inducing the Company to discriminate in regard to terms or conditions of hire or tenure
of employment against employees or applicants for employment by reason of membership
or nonmembership in the Union.
(c) Compelling the Company to employ only members of the Union or persons approved by
the Union.
(d) Compelling the Company to discriminate in regard to the terms or conditions of hire or
tenure of employment against James G. Hebshie and Fred Hebshie because of nonmembership
in the Union.
2. Since on or about June 19, 1953, the Union has caused and/or attempted to cause the
Company to discriminate against its employees and prospective employees in regard to hire
or tenure of employment, and other terms or conditions of employment by:
(a) The execution of a written agreement with the Company which requires, as a condition
of employment , membership in the Union or the Union's consent to such employment.
(b) Requiring the discharge or other discriminatory treatmentofJames G. Hebshie and Fred
Hebshie on or about June 19, 1953.
(c) Compelling and continuing to compel the Company thereafter to refuse to reinstate
James G. Hebshie and Fred Hebshie to their former or substantially equivalent positions
or employment.
(d) Forcing or requiring or attempting to force or require the Company to put into application
the provisions of an illegal hiring clause contained in a written agreement with the Union.
3. On or about June 19, 1953, the Company discharged James G. Hebshie and Fred Hebshie
and since that time has failed and refused to reinstate them to their former or substantially
equivalent positions of employment.
4. The Company discharged the Hebshies and thereafter failed and refused to reinstate
them for the reason they were not members of the Union.
5. The conduct of the Union was violative of Section 8 (b) (1) (A) and (2) of the Act and the
conduct of the Company was violative of Section 8 (a) (1) and (3) of the Act.
The Respondents filed separate answers to the complaint denying the commission of
any unfair labor practices and the Company further answered that at the time the Hebshies
were discharged it was engaged in construction work in the course of which the need for labor
varied from time to time in accordance with the progress, condition of the work, and other
factors; that the Hebshies were laid off when they were no longer needed; that during the time
of their temporary employment the Hebshies were inefficient and did defective work; and that
it acted in good faith and for valid and compelling business reasons in discharging them
without in any way being influenced by the question of union membership.
Pursuant to notice a hearing was held at Boston, Massachusetts, on November 23, 24,
and 25, 1953, before me, the duly designated Trial Examiner. The General Counsel and the
Respondents were represented at the hearing and all parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues. The parties did not avail themselves of the opportunity extended to them of
presenting oral arguments or of submitting proposed findings of fact and conclusions of law.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, counsel for the Union and the General Counsel filed briefs . Upon the entire record
of the case and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
C. A. Batson Co., the Company , is a corporation duly organized and existing by virtue of the
laws of the Commonwealth of Massachusetts with its principal office and place of business
at 26 Arlington Street, in the city of Brockton, said Commonwealth. At all material times, the
Company has been engaged in the general contracting business principally in connection with
the construction of schools and public and commercial buildings . Its principal officers
are Robert A. Batson, president, who acts as its general manager although he does not
hold such a tit 1 e, Harriet Batson , treasurer and clerk , and Eugene F. Endicott , director.
The stock of Company is owned by Robert A. Batson, John Batson, and Harriet Batson
in 3 equal shares. From April 1952 through March 31, 1953, the Company did a gross
business of $ 950,000, 60 percent of which was sublet to other contractors. Purchases made
during this period amounted to $ 200,000 , 90 percent of which was purchased from Batson
Building Supply Company, a Massachusetts corporation (also owned by Robert A., John, and
Harriet Batson), which purchases materials outside the Commonwealth. During the period of
1 year prior to the commission of the alleged unfair labor practices, the Company, in addition
to building public schools, a public building, and 1 or 2 supermarkets, completed a construc-
tion job for American Optical Company for the amount of $ 68,490, and furnished construction
services to Commonwealth Shoe Company and Brockton National Bank in amounts totaling in
excess of $ 68,300. By amendment to its answer made during the hearing and allowed over the
objection of the General Counsel, the Company denied, what it had previously admitted, that in
the course and conduct of its business it causes and has caused at all material times large
quantities of lumber, cement, hardware, and other materials used by it to be purchased and
transported in interstate commerce.
I find, however, that the Company is engaged in commerce within the meaning of the Act, and
that it will effectuate the purpose of the Act to assert jurisdiction in the instant cases.
II. THE LABOR ORGANIZATION IN\OLVED
Local 721, International Hod Carriers , Building & Common Laborers Union of America,
A.F.L., is a labor organization admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. The contract between the Respondents
Section 2 of article I of the contract to which the Company is a party and which was in effect
at all material times between the Union and Contractors of Brockton, Massachusetts and
Vicinity, of which the Company is a member, provides that:
Sec. 2. The Party of the First Part (Respondent Company) agrees to employ members of
the Party of the Second Part (Respondent Union) and the Party of the Second Part agrees
to give preference in the furnishing of men for employment to the members of the Party
of the First Part under the terms , conditions and rages of wages hereinafter provided in
this Agreement, which terms, conditions and rates of wages have been arrived at and
determined through bona fide collective bargaining between the Parties of this Agreement.
It is agreed that all subcontractors shall be governed by the terms of this Agreement. i
B. The hire and discharge of James G . and Fred Hebshie
These two laborers are brothers. They had been expelled from the Union following a hearing
held late in 1951 on charges of unbecoming conduct and assaulting and insulting a union offi-
i This clause, which was contained in contract that expired June 1, 1953, was continued in
a new contract which the parties agreed to sign on June 12, 1953, following renewal negotia-
tions which had extended from May.
C. A. BATSON CO. 1345
cial on a job at a Veterans ' Administration Hospital in Brockton, Massachusetts. In early 1952,
their sentences were reduced to 1 year's probation and the payment of a fine. On June 12,
1953, they were hired on the job site by Hildmg A. Olson, a superintendent for the Company,
and went to work as laborers on what is referred to as the Fernandes Market job in East
Bridgewater, Massachusetts. At no time before nor durmgtheir 7 days of employment had the
Hebshies paid the fine, the periodic dues, or any initiation or readmission fee which may have
been uniformly required as a condition of acquiring or retaining membership in the Union.2 The
job was completed on October 20, 1953.
These two men were discharged on June 19, 1953, by Olson who subjectively gave as the
reason for discharging them "that they were trouble makers and according ... to hearsay
that they were inclined to be light fingered." 3 Olson's objective testimony was that when he let
the two men go he told them he was sorry they had got themselves in trouble at the Veterans'
Administration Hospital and with the Union and he had to let them go; he advised them to get
themselves straightened out with the Union; one Sullivan, then a company superintendent
(whom Olson, on June 19, 1953, informed Massachusetts State Representative Wilfred A.
Derosier and East Bridgewater Chief of Police Hayden was the person who did the hiring),
told him on June 19 he thought the Hebshies should be laid off;4 that the conversations with the
Hebshies and Sullivan took place on June 19, the day of the Hebshies' discharge and the day
after Victor Parziale , the then business representative for the Union (deceased September 14,
1953), had visited the job site and talked with workmen;5 he sees no reason for refusing the
Hebshies jobs, if their difficulties with the Union are settled, their trouble at the Veterans'
Administration Hospital or any difficulty they had run into is straightened out, and they are
exonerated and things become more clear; they were satisfactory as good laborers; and, that
he hired two laborers sent to him by Parziale to replace the Hebshies.6
As further bearing on the part the Union had in bringing about the discharge of the Hebshies
and influencing or controlling the Company's method of hire and fire, we may consider the
credited testimony of another witness called by the Respondent Union, to wit: Representative
Derosier (previously referred to) testified that on Friday, June 19, he sought work at the
company job site for 2 or 3 constituents, learned from Olson that 2 men were to be laid off
that day and he would have to see Sullivan; he then went to the Company's office where Sullivan
said he had to see Parziale, whom, from what he understood, Sullivan had already told he
needed 2 men for Monday; and, thereafter, on the same day, he saw Parzialewho said he
already had 2 men whom he was sending to the job, hiring them for Batson, and consequently
his constituents could not go to work.
It also appears from the credited testimony of Louis W. Poirter , business agent of the Union
since sometime after September 14,1953, that(probably during a period of about 2 months) the
Company had called him once for help, that Parziale made the statement on the night of June
18 that the Hebshies were working on the Batson job, and that he knew he had to check the
records.?
On June 18, 1953, Superintendent Sullivan told employee Morris Plumberg [Blumberg] ,
appointed sergeant-at-arms of the Union in October 1953 and earlier a member of the
union negotiating committee--in response to Plumberg's assertion that when Sullivan
2 It is immaterial whether the Hebshies tendered these amounts because no legal union-
security clause was contained in either the contract which expired June 1, 1953, or the contract
which the Company agreed on June 12, 1953, to sign with the Union and because, in any event,
there can be no clams that the hiringcontract falls within the scope of the proviso in Section 8
(a) (3) of the Act (the so-called union-shop provision) which merely permits under certain
circumstances the making of a contract requiring membership in a union as a condition of
employment on and after the 30th day of employment. Therefore, the disputed question of fact
whether the Hebshies tendered dues or initiation fees need not be resolved.
3 This alleged reason is at considerable variance with the Companies' averment that they
were laid off when they were no longer needed and because they were inefficient and did
defective work.
4Anything Olson may have been overheard saying on the telephone identifying the Union with
the discharges and repeated to a third person is disregarded as hearsay.
5James G Hebshie's testimony that the date of Parziale's visit to the job was June 18 was
corroborated by that of Anthony Cardoza and others and stands unrefuted.
6 These two were members of the Local and went to work the workday following the dis-
charges in question.
7 At this time Poirier was president of the Union.
339676 0 - 55 - 86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired the Hebshie brothers he had hired trouble, that he already had been "tipped off" by
Parziale. 8
On June 19, 1953, Superintendent Olson told employee Anthony Cardoza, a member of the
Union who had worked with the Hebshies on the job from which they were discharged, that he
was kind of sorry that he had had to lay off the Hebshie brothers that day but his hands were
tied, it came from higher up, and, refer ring to the fact that Parziale made an approach through
somebody else rather than directly to him, asked Cardoza if that was Parziale's way of
operating.
The testimony of James B. and Fred Hebshie discloses that, on June 18, the day before they
were discharged, Olson asked them if they were members of the Union and stated that they knew
they were working on a union job. Upon their expression of uncertainty as to their status,
Olson informed them that if they wanted to continue working they should pay the fine assessed
against them and get straightened outwiththeUnion; the following morning at 7:30, James told
Olson he had not been able to get the Union to accept his fine or dues and Olson made no
reply. At approximately 4 o'clock in the afternoon, one-half hour before quitting time, Olson
called the brothers to his office where he told them that he was sorry he had to let them go and
see them losing their jobs; that their work was satisfactory; that it was none of his doings,
that he had nothing to do with it; Olson asked them if they had seen Parziale on the job and
stated that he comes on and goes offa job as though he owned it; told them Parziale went over
his head; stated that he had received a notice from higher up to let them go and that Sullivan
had called him to get rid of them; and stated that they should get straightened out and their
jobs would be awaiting them.
Since June 19, 1953, neither brother has become a member of the Union in good standing,
has been reemployed by the Company, nor able to procure work from any members of the
Contractors of Brockton, Massachusetts and Vicinity--the aforementioned employer --parties
to the collective-bargaining agreement with the Union.
Conclusions
(a) The principles involved
Section 8 (a) (1) and (3) of the Act provides that it shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of their rights
of self-organization under Section 7, to bargain collectively through representatives of their
own choosing, or to refrain therefrom, "by discrimination in regard to hire or tenureofem-
ployment or any term or condition of employment." Section 8 (b) (2) and (1) (A) of the Act
provides that it shall bean unfair labor practice for a labor organization or its agents to cause
or attempt to cause an employer to discriminate against employees in violation of Section 8
(a) (3); and to restrain or coerce employees in the exercise of their rights of self-organization
under Section 7. Thus these sections of the Act are violated by an employer if it discharges
an employee for the reason that he is not a member of a union, and by a union if it causes the
employer to take such action. This is so because the Act requires that the employee shall have
freedom of choice of joining or not joinnga union, and any form of interference with that choice
is forbidden. Both employer and union violate these prohibitions if they execute, maintain, or
enforce a closed-shop agreement, making union membership a pre-requisite to initial or
continued employment. This is so because, both the existence of such an agreement even
entirely apart from the act of discharge for such cause without more tends to encourage
membership in a labor organization.
(b) As to the agreement
Applying the last of these principles to the plain language of the contract and considering
its execution, maintenance, and enforcement, it is clear and I find that Respondent Union
violated Section 8 (b) (2) and (1) (A) of the Act.
Red Star Express Lines v. N. L. R. B., 196 F. 2nd 78 (C. A. 2); International Union, United
Mine Workers v. N. L. R. B., 184 F. 2d 392, 393 (C. A.,D. C.), certiorari denied 340 U. S.
934; Leo Katz v. N. L. R. B.. 196 F. 2d 411, 415 (C. A. 9); N. L. R. B. v. Acme Mattress Co.,
192 F. 2d 524 (C. A. 7), enforcing 91 NLRB 1010; N. L. R. B. v. Radio Officers') Union.196
F. 2d 960 (C. A. 2), affirmed 347 U. S. 17.
8 Declarations made by Parziale are not inadmissible as hearsay. Mass. G L. Ch. 233, Sec.
65, as amended May 5, 1943.
C. A. BATSON CO.
(c) As to the discharges
1347
Applying all these principles to the facts of this case, it is plainly inferable and I find that
the Respondent Company discharged James G.Hebshieand Fred Hebshie in violation of Section
8 (a) (1) and (3) of the Act and the Respondent Union caused the violation, thereby violating
Section 8 (b) (2) and (1) (A) of the Act. N. L. R. B. v. Lloyd A. Fry Roofing Co., 193 F. 2d
324, 327 (C. A. 9); N. L. R. B. v. Peerless Quarries, Inc., 193 F. 2d 419 (C. A. 10). (See also
the same cases cited above in connection with the violation inherent in the execution, mainte-
nance, or enforcement of the agreement respecting the employment of members of the Union).
The Company variously alleges in its answer, on the one hand, that the discharges were due
solely to lack of need of the Hebshies' services and their defective workmanship and ineffi-
ciency, and asserts, on the other hand, through the testimony of its superintendent that the
Hebshies were laid off because they were troublemakers, rumored to be "light fingered,"
came to work 10 minutes late 1 morning with Cardoza,9 and engaged in a "tea party" consisting
of their getting together on the daytheywere hired and starting a conversation during working
hours with another employee. It requires but slight examination of the record to conclude
that the "reasons " advanced by the Company are more pretextuous than genuine . The fact
that two laborers were hired to replace the Hebshies disposes of the claim that their services
were not needed.
Olson's testimony that they were satisfactory as good laborers contradicts the allegation
in the answer that they were inefficient. The ascribed reason for their discharge as being
their reporting for work 10 minutes late on one occasion and their "tea party" during their
first day onthe jobmightbear amore convincing semblance of verisimilitude if the other tardy
employee and the other (unidentified) laborer partaking of their allegorical cheering, though
uninebriating , cup had been similarly penalized.
An entirely unverified report of past pilfering, if such a rumor there was, based solely
on hearsay, uninvestigated and not alluded to in the answer, was palpably thrown in as an after-
thought in an attempt to bolster the defense that these satisfactory laborers were discharged
for cause. Altogether more revealing of the actual reason for the Hebshies' separation from
employment are Olson's admissions that the Hebshies had got themselves in trouble and he
had to let them go; that he knew they were in trouble with the Unions that he told them they
should straighten themselves out with the Union; and that if they settled their difficulties with
the Union he would see no reason for refusing them a job. Obviously. Olson's reference to these
men as "trouble-makers" adverts to the quarrels they had had with the Union which in turn
had caused "trouble" between the Union and the Company rather than to any work conduct
rendering them undesirable employees.
The contention of both Respondents that the Union played no part in bringing about the
Hebshies' discharges not only is not supported by--but indeed is contradicted by--facts
gleaned in largemeasure from the testimony ofwitnesses called by the Respondents themselves
and from members of the Union. Thus we have seen that Parziale visited the job site on June
18 and that night told the President of the Union that the Hebshies were working there. Super-
intendent Sullivan told an employee that hehadbeen "tipped off" about these men by Parziale.
Sullivan then informed Olson he should let them go. Olson told the brothers that if they wanted
to work on the job they should straighten themselves out with the Union. They did not do this.
The next day at the instance from "higher up," they were discharged by Olson who expressed
regret for having taken an action in which he had no choice.
Although former Superintendent Sullivan did not testify and we do not have the evidence of
Parziale, it is clear from Representative Derosier's testimony that on the morning of June 19
applications for employment of 2 or 3 men were made of Superintendent Olson, that Olson
referred the matter to Superintendent Sullivan, who he said did the hiring, and that Sullivan
referred the requests to Business Agent Parziale, who stated he had already hired the needed
laborers for the Company. to
9Cardoza, a union member in good standing, was laid off during the week of June 12 while a
bulldozer was preparing the excavation for laboring work and then rehired within a few days.
10 In cross-examination Derosier testified he told Parziale Sullivan requested that he see if
Parziale might be able to put 2 fellows to work and Parziale told him he was already sending
2 men--hiring them for Batson--and that therefore his constituents could not go to work. In
redirect examination Derosier testified that Sullivan said to him "that if Mr. Parziale hadn't
put (sic) the two men we may put your two men on but you better find out from Mr. Parziale
if he has or hasn't."
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also apparent from the record that although at times the Company hired laborers at
the job site, it also on occasions procured them through Parziale. On the basis of all of these
facts and circumstances and because oftheCompany's unconvincing attempt at explanation and
the failure of its asserted reason for the discharges to stand up under scrutiny,--N. L. R. B.
v. Bird Machine Co., 161 F. 2d 589, 592 (C. A. 1)--I am persuaded that the Union caused it to
discharge these two employees.
The Union argues in substance that assuming, arguendo, Parziale prevailed upon the Company
to discharge the Hebshies, it was only because he personally disliked them and that this an-
tagonism is not in itself sufficient to establish that the Union or its agents actually caused
the Company to discharge them. There can be no real question but that there was lodged in its
business agent general authority to wield the power of the Union. It has frequently been held
that under applicable general rules of agency, unions as well as employers are chargeable
with the conduct of their officers and subordinates , whether they act without express authority
or even if their actions are specifically forbidden, provided they have been empowered by
their principals to represent them in thegeneralarea within which they have acted. Shen-Valley
Meat Packers, 105 NLRB 491; Cement Masons LocalNo. 555 etc., 102 NLRB 1408; N. L. R. B
v. Schaefer-Hitchcock Co., 131 F. 2d 1004,1007(C. A. 9); cf. International Ass'n of Machinists
v. N. L. R. B., 311 U. S. 72, 80; see also Section 2 (13) of the Act.
Moreover, apart from any feeling of private animosity he may have had, Parziale, in calling
upon Sullivan todischarge the Hebshies, as Ifind he did, was attempting no more than to secure
compliance by the Company with its agreement to employ members of the Union. I must
therefore reject the Union's contention that it has not been established that the Union or its
agents actually caused the Company to make the discharges.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in connection
with the operations of the Respondent Company, 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 obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom and taken certain affirmative action to effec-
tuate the policies of the Act. The nature of the case presents a question in regard to the scope
of the cease and desist orders.
The record shows with respect to Local 721 that its contract applies to work performed by
construction and general laborers for some 14 contractors in Brockton and vicinity. There
is thus a real danger that the Respondent Union may seek to engage in other like infractions
of the Act not only with respect to employees of the Respondent Company but also with respect
to employees of other employers.
By the time violations of this character and in the industry involved in this case are
restrained by Board orders and court enforcement, usually the particular project involved has
been completed, as indeed has been the Fernandes Market construction with which we are
concerned in the instant case.
Frequently therefore the only practical effect of an order limited to the parties to an
immediate dispute is to compel the making whole of individuals discriminated against and to
require the posting of notices. Such a restricted order would not serve to restrain the
Respondents from joining in similar unlawful arrangements and practices or to restrain the
Union from engaging in like unlawful arrangements and practices with other employers.
Therefore I am of the opinion that appropriate here is a cease and desist order that Local
721 should refrain from executing or enforcing any agreement with Batson or with any
other employer, which requires as a condition of employment membership in Local 721
or has the effect of inducing such employers to discriminate in regard to the terms or
conditions of hire or tenure of employment against employees by reason of membership or
nonmembership in Local 721, except in accordance with the provisions of the Act, and I shall
so recommend.
NATIONAL TRUCK RENTAL COMPANY, INC. 1349
I shall also recommend that the Respondents, jointly and severally, make whole James G.
Hebshie and Fred Hebshie for any loss of pay suffered by reason of the discrimination
against them, by the payment to each of them of a sum of money equal to that which he normally
would have earned from June 19,1953, until the date he would have been laid off in the absence
of unfair practices, less his net earnings during such period. Back pay shall,be computed in
accordance with the formula established in F. W. Woolworth Company, 90 NLRB 289.
Conclusions of Law
1. C. A. Batson Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
2. Local 721, International Hod Carriers, Building & Common Laborers Union of America,
A.F.L., has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) and (2) and Section 2 (6) and (7) of the Act.
Recommendations omitted from publication.]
NATIONAL TRUCK RENTAL COMPANY, INC. and LOCAL
639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, AND DISTRICT LODGE NO. 67, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL (LOCAL
1486 ), Petitioner . Case No. 5-RC-1397. June 15, 1954
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On February 19, 1954, pursuant to the Decision and Direction
of Election issued by the Board in the above-entitled case,' an
election was conducted, under the direction and supervision of
the Regional Director, in the unit therein found appropriate.
Following the election , the Regional Director issued and served
on the parties a tally of ballots, which shows that of the 31
ballots cast in the election, 13 were cast for the Petitioner,
15 were cast against the Petitioner, and 3 ballots were
challenged. The challenged ballots are sufficient to affect the
outcome of the election.
On February 25, and 26, 1954, respectively, the Employer
and the Petitioner filed timely objections to the conduct of the
election. On April 2, 1954, after investigation, the Regional
Director issued and served on the parties his report on
objections and challenges. On April 9, 1954, the Employer
filed exceptions to the Regional Director's report.
The Board has reviewed the objections to the election, the
Regional Director's report, and the Employer's exceptions
thereto. Upon the entire record in this case , the Board finds
as follows:
With respect to the challenged ballots, the Employer con-
tends that.Silas Allen and Elmer Walton, two of the challenged
'Not reported in the printed volumes of Board Decisions and Orders.
108 NLRB No. 191.