C. Rasmussen & Sons

National Labor Relations Board - Board Decisions

Dec 29, 1958

122 N.L.R.B. 674 (N.L.R.B. 1958)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire or tenure of employment of Bessie
Schaumann , Mildred Ellison, Josephine Barges, Verna Goatcher, and Mary Daven-
port, the Respondents have engaged in and are engaging in an unfair labor practice
within the meaning of Section 8(a)(3) of the Act.
3. By such discrimination , and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, through surveillance and interrogation
of its employees , and warnings and threats to them, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Walter Rasmussen d/b/a C. Rasmussen &.Sons and Paul Swallick
Local 469, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Paul Swallick.
Cases Nos. 22-CA-75 and 22-CB-24. December 29, 1958
DECISION AND ORDER
On June 12, 1958, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging 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, Respondent Local
469 and the General Counsel filed exceptions to the Intermediate
Report with supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and briefs, and the entire
record in this case and adopts the Trial Examiner's findings and
conclusions only to the extent that they are consistent with the
findings and conclusions set forth below.
1. We find, in substantial agreement with the, Trial Examiner,
that Rasmussen had discriminated in regard to the hire and tenure
of employment of Paul Swallick, thereby violating Section 8(a) (3)
and (1) of the Act by the following conduct :
(a) Prematurely laying off Swallick on July 26, 1957, pursuant to
the union-security provision of the contract because he had failed to
straighten out his union book or otherwise to obtain membership
I As Respondent Rasmussen filed no exceptions to the finding that it violated Section
8(a) (1) and (3) of the Act, we shall adopt the findings without comment except as
otherwise stated herein.
122 NLRB No. 85.
C. RASMUSSEN & SONS 675
in or clearance from Respondent Local 469, since the contract did
not require Swallick's membership in Local 469 until after the
expiration of the 30-day grace period.
(b) Not rehiring Swallick on August 21 and again on August 26
after the Okonite strike was over when work for Swallick became
available, because he was unable to obtain clearance from Local 469.
(c) Accepting on July 31 Local 469's determination that the matter
of clearance or transfer of Swallick be deferred until the end of the
cement and concrete strike.
2. We also agree with the Trial Examiner that Local 469 by
obstructing and eventually denying Swallick's request for a transfer
from Local 701 into Local 469, caused or attempted to cause Re-
spondent Rasmussen to discriminate in regard to the hire and tenure
of employment of Paul Swallick, thereby violating Section 8(b) (2)
and (1) (A) of the Act.
Local 469 attempts to justify its failure to transfer Swallick to
Local 469 on the ground that Swallick had at no time taken the
steps necessary to consummate such a transfer. In particular, it
is asserted that Swallick never complied with the provisions of the
constitution with respect to transfers from a sister local, namely,
that he had never obtained from Local 701 and submitted to Local
469 a transfer card within the 30-day period. The contention is
without merit for two reasons. First, the Trial Examiner found,
and we agree, that under the constitution of the International no
transfer card could have been issued by Local 701 to Swallick
without the approval in writing from Secretary Treasurer Volosin
of Local 469 of the contemplated transfer to Local 469, and that
Volosin by his failure to issue such an approval effectively obstructed
and prevented the issuance by Local 701 of any transfer card to
Swallick. Secondly, assuming that Swallick did fail to comply
with the Local 469's requirements for transfer, the denial of the
transfer by Local 469 on that ground, insofar as it affected Swallick's
employment with Rasmussen, was unlawful because membership in
the Union under the union-security provision of the contract could
have been lawfully denied only for failure ^ to, tenderdues,and in-
itiation fees uniformly required as a condition of acquiring mem-
bership in the Union. No such contention was made by Local 469.
Assuming further that the transfer was denied pursuant to an oral
hiring arrangement or understanding requiring clearance as a condi-
tion of employment with Rasmussen, such denial would be also
violative of the Act regardless of the reason asserted therefor.
3. We also find, as alleged in the complaint, that Respondent
Rasmussen has violated Section 8 (a) (3) and (1) of the Act, and
Respondent Local 469 violated Section 8 (b) (2) and (1) (A) by per-
forming, maintaining, or otherwise giving effect to an oral employ-
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment arrangement, understanding, or practice which requires mem-
bership in, and clearance by, Local 469 as a condition of employment ;
and that Swallick was discriminated against by Rasmussen and
denied clearance by Local 469 pursuant to this employment ar-
rangement.
Although the Trial Examiner, in finding a violation of the above
sections of the Act, proceeded on the assumption that Swallick was
discriminated against by Rasmussen and denied clearance by Local
469 pursuant to such an arrangement, understanding, or practice,
he made no specific finding that the Respondents herein violated
the Act by performing and maintaining such oral arrangement or
. understanding.2 It is to this failure of the Trial Examiner to make
such specific finding that the General Counsel now excepts. We
find merit' in this exception. The record, in our opinion, amply
sustains the allegation of the complaint to this effect.
Swallick, who was a member of sister Local 701, was hired by
Rasmussen on July 22, 1957. He reported for work at the Rasmussen
yard on July 23. Two days later, shop steward of Local 469, Frank
Huda, commenting on Swallick's employment, told Rasmussen and
Swallick that "Local 469 ... jumped all over ... [him] for letting
Rasmussen hire a 701 man," and that Swallick would have to go. to
the union hall and straighten out his union 'book with the president
of Local 469, Tom Kelly. On that.occasion, Huda also stated that
Frank • Volosin, secretary-treasurer of Local 469, told him "that
Rasmussen would have to call 469 for a driver," and that "it is-
in the contract, that Mr. Rasmussen knows all .about it, that he has-
to call 469 for a driver." Rasmussen not only failed to register-
his dissent from this interpretation of the contract or arrangement
between him and Local 469, but joined Huda in advising Swallick-'
to see President Kelly the next morning in order to straighten out
his 'union book .3 -After Swallick's.: unsuccessful attempt on. the.
morning .of Friday; July 26, 'to see President Kelly and his return,
to the Rasmussen yard later in the. day; he was questioned by'
Rasmussen and Huda as to the. outcome of his visit- to : the union
hall.. Swallick informed them that he: could not see, President Kelly,.
but that he would see. him next Monday, and that in the meantime,
he was permitted to work that -day, . Huda and Rasmussen , however,,
did not, take Swallick's word, :but went into • the office; to' telephone,
Volosin to verify Swallick's. statement. 'Upon their return, Huila.
.informed Swallick that he could work that' day,,that ".Volosin o.k.'d.
2In section 1(c) of his , proposed order the Trial Examiner recommended that Ras-
mussen and Local 469 be directed to cease and desist from. performing, maintaining, or
giving effect to any . employment arrangement or practice whereby : employees are required
as 'a condition of employment to obtain clearance from a labor organization.
This evidence ! stands uncontradicted on'the record . Rasmussen did not deny it, and
Huda , who was still employed at the time , of the hearing by Rasmussen , was not called^
upon to testify.
C. RASMUSSEN ' & SONS 677
it," but that Swallick was to be sure to go down to the union hall
next Monday and see Kelly or Riley and, straighten out his union
book. With the Okonite job no longer available because of. the
,strike, Swallick was assigned that day to some. other work. At the
end of the working day Rasmussen told Swallick that he could use
him next Monday if he straightened out his union book 4 . Swallick
testified without contradiction that at this time he and Rasumssen
reached an understanding that his further employment would depend
upon his ability to straighten out with Local 469 his union book.
While Huda's and Rasmussen's 'preoccupation with Swallick's
union status and their insistent demands that he immediately
straighten out his union book cannot be explained under the union-
:security provision of the contract, the 30-day grace period of. which
had not then expired, such demands would but naturally flow from
a preferential hiring arrangement between the Respondents that
required a clearance from Local 469 as a condition of employment.
Indeed, Swallick's conversation with Secretary-Treasurer Volosin
in the morning of July 26 clearly demonstrates the existence of
some such arrangement. Swallick testified5 as follows :
So as soon as I walked in [Volosin's office], I asked him,
"What's this I hear, Rasmussen can't hire a 701 man-" So he
said, "Well, what you expect? We got two hundred men out
of work. And he is going to put on men out of a different local."
I says, "Don't you think Mr. Rasmussen has the privilege of
putting a man who he thinks has the ability and everything
to drive that truck?" And he says, "Well, he knows it is in the
contract that he is supposed to call the hall for a driver." I
says, "Well, that, I don't know."
Swallick's efforts to meet with President Kelly were not suc-
cessful until July 29 when he caught him in the parking lot as
Kelly was about to drive away. Swallick asked Kelly whether
Volosin had told him about his case. Kelly said : "Yes, I got that
Rasmussen fellow coming down ... I will see him in a couple of
days and everything will be taken care of." Kelly and Rasmussen
admittedly met in the union hall on July 31. Following this con-
ference Swallick asked Rasmussen whether they reached any agree-
ment with regard to his cases Rasmussen said : "Tom Kelly told
* This testimony of Swallick also was not denied by Rasmussen, and was substantially
credited by the Trial Examiner. Huda did not testify.
B Swallick's testimony was denied by Volosin. The Trial Examiner made no credibility
determination. However, in view of the uncontroverted evidence attributing to Volosin
a statement in which he criticized both Shop Steward Huda and Rasmussen for hiring
and/or permitting the hire of a member of Local 701, and the finding of the Trial
Examiner 'that Local 469 had caused Rasmussen to deny employment to Swallick by
obstructing and eventually denying transfer or clearance to. Swallick, we credit Swallick's
testimony as inherently probable and we reject Volosin's denial.
Rasmussen 's and Kelly's denials that they discussed Swallick 's case at this con-
ference were not credited by the Trial Examiner.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me after the cement and concrete strike is over, we will see what
we can work out. Well, we'll leave it as it is until the cement and
concrete strike is over."7 As Swallick was not required under the
terms of the union-security provision of the contract to become a
member of Local 469 until after the expiration of the 30-day grace
period, Rasmussen's acquiescence in Kelly's determination as to
whether, and/or when, Swallick would resume working for Rasmus-
sen can be explained only by the existence of some hiring arrange-
ment or understanding pursuant to which Rasmussen delegated the
power to hire or to clear for hire to Local 469.
Although work at the Rasmussen yard became available for another
driver before the end of the Okonite. strike, Rasmussen did not re-
hire Swallick for that work. Instead, he called upon Local 469
for referral of a new driver. Local 469 then referred Richard
Reed, a member of Local 469, who reported for work on August 21.
Rasmussen also did not rehire Swallick on August 26 after the
termination of the Okonite strike when he had resumed service for
the Okonite Company. Again, as on previous occasions, Rasmussen
informed Swallick that he could use him, but only if he obtained
clearance from Local 469. Questioned by the Trial Examiner as to
why he did not rehire Swallick on that occasion, Rasmussen testified
that it was because Swallick "hadn't gotten straightened out with
469 after the 30-day period, and I had to keep my work going
and I had to have a man from 469 to run the truck, otherwise I
wouldn't be able to go out there, to operate the truck." However,,
Rasmussen's reliance on Swallick's failure to straighten out his
union book within the 30-day grace period as an excuse for not
hiring was clearly an excuse and without merit. If, as testified by
Rasmussen, he discharged Swallick on August 6, he could have
rehired Swallick on August 21 and again on August 26 without
violating the union-security contract, for, as an applicant for em-
ployment, Swallick was entitled to the 30-day grace period from
the date of the new employment within which to join Local 469.
In view of the evidence set forth above, we find that the Re-
spondents herein have performed, maintained, or otherwise given
effect to an oral arrangement, understanding, or agreement whereby
applicants for employment, or employees of Respondent Rasmussen,
including Swallick, were and are required to be or become members
in good standing of Local 469 and to receive clearance or approval
from Local 469 as a condition of employment. Respondent Rasmus-
sen has thereby placed Respondent Union in control of his hiring
and has abdicated such function to the Respondent Union. We
a The record contains no information as to when this strike, which must not be con-
fused with the Okonite strike, was terminated, if at all. The result of this determination
by Kelly, however, was to defer the consideration of Swallick's case until some in-
definite time.
C. RASMUSSEN &. SONS 679
further find that, as such an arrangement or agreement does not
provide safeguards deemed essential to the legality of exclusive
hiring arrangements, Respondent Rasmussen thereby violated Sec-
tion 8(a) (1) and (3) of the Act, and Respondent Local 469 thereby
violated, Section. 8(b) (1) (A), and, (2) of the Act.8
THE REMEDY
To remedy the unfair labor practices herein, we shall adopt the
Trial Examiner's recommendations except as modified herein.
We have found that the Respondents have performed, maintained,
or otherwise given effect to an oral arrangement or practice whereby
applicants for employment were required to be or become, members
in good standing of Local 469 and to receive clearance or approval
from Local 469 as a condition of employment. We shall, therefore,
order them to cease and desist from performing or maintaining such
arrangement or practice which does not provide for the safeguards
prescribed in the Board's decision in Mountain Pacific.9
We have also found that under the oral arrangement or practice
between the Respondent Union and the Respondent Company mem-
bership in good standing was unlawfully imposed as a condition for
securing and retaining employment with the Respondent Company,
thereby inevitably coercing employees not only to become members
in good standing in the Respondent Union, but also to pay the
Respondent Union initiation fees, dues, and other moneys. The
payment of such moneys when made thus constituted the price the
employees had to pay for their jobs in disregard of their statutory
rights. In order to expunge the coercive effects of such illegal exac-
tion, we find it necessary and appropriate in effectuating the policies
of the Act to direct the Respondents, jointly and severally, to
reimburse Swallick and all other employees referred by the Re-
spondent Union pursuant to the aforesaid hiring arrangement or
practice for the moneys so collected.10 However, in conformity with
Section 10(b) of the Act, the Respondents' liability for the moneys
so exacted shall not in any event extend beyond the period begin-
ning 6 months before the filing and service on each of the Re-
spondents of the charges herein.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
8 See Mountain Pacific Chapter of the Associated General Contractors, Inc., et al.,
119 NLRB 883; cf. Morrison-Knudsen Company, Inc., et al., 121 NLRB 247.
6 Mountain Pacific Chapter of the Associated General Contractors, Inc., supra.
10 United Association of Journeymen & Apprentices, etc. (J. S. Brown-E. F. Olds
Plumbing & Heating Corporation), 115 NLRB 594; Broderick Wood Products Company,
118 NLRB 38, enfd. 261 F. 2d 548 (C.A. 10) ; Los Angeles-Seattle Motor Empress, Incorpo-
rated, 121 NLRB 1629.
'680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Respondent Walter Rasmussen d/b/a C. Rasmussen. & Sons,
Newark, New Jersey, his agents, successors, and' assigns, shall:
1. Cease and desist from:
'(a) Discriminating in regard to the hire and tenure of employ-
ment of Paul Swallick' or any. other employee with respect' to whom
membership in Local 469, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, has been denied
on some ground other than his failure* to tender the periodic, dues
and.initiation fees uniformly required as a condition of acquiring or
retaining membership, therein:
(b) Performing, maintaining, or giving effect to any employment
arrangement, understanding, or practice. with Respondent Local 469;
International Brotherhood of Teamsters,. Chauffeurs,, Warehousemen
and Helpers of America, whereby Paul Swallick or any other em-
ployee or applicant for employment is required as a condition of
employment to become a member in good standing of Local 469,
or to obtain clearance or approval from Local 469 or any other
labor organization, or in any other like or related manner inter-
fering with, restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment in
accordance with Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Paul Swallick immediate and full reinstatement to
his former or substantially equivalent position without prejudice
to any rights and privileges previously enjoyed, dismissing if neces-
sary any drivers hired on and after July 26, 1957. -
(b) Jointly and severally with Respondent Union make whole
Paul Swallick for any loss of pay suffered by him as a result of the
discrimination found herein to the extent set forth above in section V
of the Intermediate Report entitled "The Remedy."
(c) Jointly and severally with the Respondent Union, reimburse
Paul Swallick and all other employees for all initiation fees, dues,
and other moneys they were illegally required to pay in order to
secure or retain employment in the manner and to the extent set
forth in the section herein entitled "The Remedy."
(d) Preserve and make available, upon request, to the Board
and its agents for examination and copying, all records necessary or
useful to determine the amount of back pay and other rights and
privileges to which Paul Swallick may be entitled under the terms
of this Order.
C. RASMUSSEN & SONS 681
(e) Post at its office at Fords, N. J., copies of the notice' at-
tached hereto marked "Appendix A.711 Copies of said notice, toy be
furnished by the Regional Director for the Twenty-second Region,
shall, after being duly signed by representatives of C. Rasmussen
& Sons, be posted by said Respondent immediately upon receipt
thereof, and maintained for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
Respondent C. Rasmussen & Sons to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Permit posting on the employee bulletin boards of its offices
at Fords, N. J., of the notice required to be posted by Respondent
Union pursuant to section B, 2(d) of this Order, and inform the
Union of this permission.
(g) Notify the Regional Director for the Twenty-second Region
,in writing, within ten (10) days from the date of this Order, what
steps Respondent C. Rasmussen & Sons has taken to comply
herewith.
B. Respondent Local 469, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers,
representatives, and agents, shall:
1. Cease and desist from :
(a) Performing, maintaining, or otherwise giving effect to any
employment arrangement, understanding, or practice with Respond-
ent C. Rasmussen & Sons whereby Paul Swallick or any other
employee 'or applicant for employment is required as a condition of
employment to be or become a member in good standing of Local 469,
or to obtain clearance from Local 469.
(b) Causing or attempting to cause Respondent C. Rasmussen
& Sons, or any other employer whose business operations satisfy the
Board's requirements for assertion of its jurisdiction, to determinate
in regard to the hire and tenure of employment of Paul Swallick
or any other employee with respect to whom membership in such
organization has been denied upon some ground other than his
failure to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership therein.
(c) In any like or related manner restraining or coercing em-
ployees of Respondent C. Rasmussen & Sons or any other employee
in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition,
of employment, as authorized under Section 8(a) (3) of the Act.
u•In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order:"'
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Respondent Union shall forthwith notify Respondent C. Ras-
mussen & Sons by registered mail that it has no objections to the
hiring and employment of Paul Swallick, and shall formally request
that said employee be immediately reinstated to his former or sub-
stantially equivalent position as a tr^uckdriver.
(b) Jointly and severally with Respondent C. Rasmussen & Sons
make whole Paul Swallick for any loss of pay suffered as a result
of the discrimination found herein to-the extent set forth in section V
of the Intermediate Report, entitled. "The Remedy."
(c) Jointly and severally with the Respondent C. Rasmussen &
Sons, reimburse Paul Swallick and all other employees of the Re-
spondent Company for all initiation fees, dues, and other moneys
they were illegally required to pay in order to secure or retain
employment with the Respondent Company in the manner and to
the extent set forth in the section herein entitled "The Remedy."
(d) Within ten (10) days from receipt of this Order notify
Paul Swallick and the Regional Director for the Twenty-second
Region, Newark, N. J., what steps it has taken to comply with the
Order herein.
(e) Post at its office and meeting halls in Perth Amboy, N. J.,
and send to Respondent C. Rasmussen & Sons for display at its
office at Fords, copies of the notice attached hereto marked "Ap-
pendix B.712 Copies of said notice, to be furnished by the Regional
Director for the Twenty-second Region, shall, after being signed
by the representatives of Respondent Local 469, be posted by it
immediately upon the receipt thereof, and maintained for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees and union members are customarily
posted. Reasonable steps shall be taken by Respondent Local 469
to insure that such notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for the Twenty-second Region
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
MEMBER BEAN took no part in the consideration of the above
Decision and Order.
12 See footnote 11.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that:
C. RASMUSSEN & SONS 683
WE WILL NOT perform, maintain, or give effect to any employ-
ment arrangement, understanding, or practice with Local 469,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or with any other labor organiza-
tion, which unlawfully conditions the hire of applicants for
employment or the retention of employees in employment' upon
membership in or clearance or approval by the aforementioned
labor organization, except as authorized by Section 8(a) (3) of
the Act.
WE WILL NOT in any like or related manner encourage mem-
bership in the aforementioned labor organization, or in any
other labor organization, or otherwise interfere with, restrain,
or coerce our employees in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization in accordance with Section 8(a) (3) of the Act.
WE WILL offer to Paul Swallick immediate and full rein-
statement to his former position without prejudice to seniority
and other rights and privileges previously enjoyed, and will
make him whole for any loss of pay suffered by reason of our
discrimination against him.
WE WILL, jointly and severally with the aforesaid labor or-
ganization, reimburse Paul Swallick and all other employees
for any initiation fees, dues, and other moneys they were illegally
required to pay in order to secure or retain employment with
our company.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named or any other
labor organization, except to the extent that such right may be
affected by an agreement authorized by Section 8(a) (3) of the Act.
WALTER RASMUSSEN d/b/a
C. RASMUSSEN & SONS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 469, INTERNATIONAL BROTHERHOOD
or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our members that:
:684 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
WE WUL NOT perform, maintain, or give effect to any employ-
ment arrangement or practice with Walter Rasmussen d/b/a
C. Rasmussen & Sons, or with any other employer whose business
operations satisfy the Board's. requirements for assertion of its
jurisdiction, which unlawfully conditions the hire of applicants
for employment, or retention of employees in employment,
upon membership in, or clearance or approval by the afore-
mentioned labor organization, except as authorized by Section
8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause Walter Rasmussen
d/bja C. Rasmussen & Sons or any other employer to dis-
criminate in regard to the hire or tenure of employment of
Paul Swallick or any other employee in violation of Section
8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor or-
ganization in accordance with' Section 8(a) (3) of the Act.
WE WILL notify in writing Walter Rasmussen d/b/a C. Ras-
mussen & Sons that all our objections to the hiring and
employment of Paul Swallick have been withdrawn, and request
that he be immediately reinstated to his former or substantially
equivalent position without prejudice to seniority or other rights
and privileges previously enjoyed.
WE WILL make whole Paul Swallick for any loss of pay
suffered by him by reason of the discrimination against him.
WE WILL, jointly and severally with the aforesaid company,
reimburse Paul Swallick and all other employees for any in-
itiation fees, dues, and other moneys they were illegally required
to pay in order to secure or retain employment with the afore-
said company.
LOCAL 469, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized and conducted under Section 10 of the Labor
Management Relations Act, 1947, as amended, 61 Stat . 136, herein called the Act,
were heard before the duly designated Trial Examiner in Newark , N.J., on
'C. RASMUSSEN & SONS 685
April 7, 8, and 9, 1958. Upon charges filed by Paul. Swallick (an individual) on
September 3, 1957, against Local 469, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (herein called Local 469 or
Respondent Union), and on December 10, 1957, against. Walter Rasmussen doing
business as C. Rasmussen & Sons (herein called the Employer or Respondent.
Rasmussen), the General Counsel of the National Labor Relations Board (herein
separately designated as General Counsel and the Board) issued a consolidated
complaint alleging that Respondent Rasmussen has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act;
that Respondent Union engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act; and that such unfair labor practices
affect commerce within the meaning of Section 2(6) and (7) of the Act. . Copies
of the charges, complaint, and notice of hearing were duly served upon all
Respondents. .
With respect to the unfair labor practices, the complaint with more particularity
alleges that: (1) Respondent Rasmussen and Respondent Union abided by, main-
tained, and enforced an unlawful arrangement, understanding, or agreement,
whereby employees and applicants for employment were and are required to be
or become members in good standing of Local 469 and to receive clearance or
approval from Respondent Union as a condition of employment with Respondent
Rasmussen; (2) on or about July 25, 1957, Respondent Union did unlawfully
demand and require that Respondent Rasmussen discharge and refuse to rehire
Paul Swallick because he was not a member in good standing of Local 469 for
reasons other than his failure to tender periodic dues and initiation fees and
because he had not received clearance or approval from Respondent Union as a
condition of employment with Respondent Rasmussen; and (3) on or about
July 26, 1957, Respondent Rasmussen did discharge and thereafter refused to
reinstate or rehire Paul Swallick because he was not a member in good standing
of and had not received clearance or approval for employment from Local 469.
In due course each of the Respondents filed an answer to the complaint denying
all allegations of unfair labor practices. Each admitted, either in its answer or by
later stipulation at the hearing, all allegations of the complaint with respect to
commerce and jurisdiction of the Board.
Pursuant to notice duly served upon all parties, a hearing. was' held at Newark,
N.J., on April 7, 8, and 9, 1958, before the Trial Examiner duly designated by
the Chief Trial Examiner. All parties were present and represented by counsel.
Throughout the hearing, all parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon the
issues involved. At the conclusion- of the hearing, counsel for all parties waived
oral argument and were granted 20 days within which to file written briefs and
proposed findings and conclusions with the Trial Examiner. None were filed
within the time allowed, and no requests for extension of the time were received.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Respondent Rasmussen is an individual proprietor doing business under the laws
of the State of New Jersey, having and maintaining his principal office and place
of business at 902 King George's Road, Fords, N.J., where he is engaged in the
business of furnishing and performing rigging, hauling, trucking, and related serv-
ices. Within a 12-month period immediately prior to the filing of the complaint,
Respondent Rasmussen in the course of his business operations furnished, supplied;
and. rendered services valued in excess of $300,000 to various companies and enter-
prises located in the State of New Jersey, each of which was engaged,in interstate
commerce by shipping materials and finished products valued in excess of •$50,000
per annum across State lines to destinations outside the State of New Jersey. I
find, therefore, that Respondent Rasmussen is engaged in commerce within the
meaning of Section 2(6) and (7) of. the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent Union, Local 469, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor organization within the
meaning of Sections 2(5) and 8(b) of the Act. Its local officers include Thomas
J. Kelly (president and business director), Patrick Reilly (vice president and busi-
ness agent), and Frank J. Volosin (secretary-treasurer). The union hall and offices
of Local 469 are located at Perth Amboy, N.J.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The bargaining agreement
On or about July 24, 1956, Respondent Rasmussen and Local 469 entered into
a written agreement to govern the wages, hours, and working conditions of truck-
drivers (chauffeurs, etc.) employed by Rasmussen from May 1, 1956, until May 1,
1958, which contained union-security provisions, as follows:
Section 1 (a) The Company hereby recognizes the Union as the sole and
exclusive bargaining agent for all classifications of employees listed in the
following Section 2.
(b) Throughout the term of this agreement all employees shall be required
as a condition of employment to become members of the Union on and after
thirty days following the beginning of employment or the effective date of this.
agreement , whichever is the later.
(c) The superintendent or man in charge shall immediately, upon employ
ment, notify the Shop Steward or the Union if there is no Shop Steward of
the employment of any man who, under this agreement may be required to be
a member of the Union. Upon notice from the Union that any employee who
has been employed more than thirty (30) days has failed to tender the periodic
dues and initiation fees uniformly required as a condition of acquiring and
retaining membership, the employer agrees to discharge such employee within
seven (7) days after receipt of written notice from a properly authorized
official of the Union. [Emphasis supplied.]
Pursuant to this agreement Respondent Rasmussen initially employed Frank
Huda and Willard Smith as truckdrivers. By reason of seniority Huda was paid
the hourly wage of $2.69 provided for a shop steward, and Smith was paid the
wage of $2.44 as a chauffeur. Both were members of Local 469. Thereafter, the
latter was discharged on or about July 19, 1957, and immediately filed a grievance
against the Employer by and through the Respondent Union. As a replacement
for Smith, Respondent Rasmussen on July 22, 1957, hired Paul Swallick, a member
of sister Local 701.
B. Employment and discharge of Paul Swallick
Swallick was formerly a member of Local 469, but had transferred his mem-
bership to Local 701 upon the acceptance of employment in another locality, and
was currently working for Interborough Trucking Company at Metuchen, N.J.
After work hours on Monday, July 22, 1957, Walter Rasmussen (Respondent)
approached Paul Swallick in a neighborhood bar-grill and inquired whether he
would be interested in employment as a truckdriver. In course of the conversation,
Rasmussen proposed to employ Swallick on a regular basis of 8 hours a day from
approximately 4 p.m. to midnight to operate a dump truck removing industrial
waste and garbage from the premises of Okonite Manufacturing Company (herein
called Okonite). In addition, he would be employed on an hourly basis for over-
time work when available. Little was said about his compensation, because it was
understood that wages would conform to the union scale provided in the contract.
Swallick took the offer under consideration, and after discussing the matter with
his wife and his current employer, notified Respondent Rasmussen several hours
later that he would accept the job.
Consequently, Swallick reported for work with C. Rasmussen & Sons at approxi-
mately 8 a.m. on Tuesday, July 23, 1957. As his first work assignment, Rasmussen.
despatched Swallick with a winch .truck to move a press for the Carborundum
Company. Upon completion of that assignment, Swallick proceeded with a dump
truck about 5 p.m. to the Okonite plant, accompanied by Shop Steward Frank Huda
to explain the new operation. Having completed the daily routine at Okonite
about 11 p.m., Swallick then went home.
On Wednesday. July 24, 1957. Swallick reported for work at approximately
4:30 p.m.. proceeded to the Okonite plant with a 'dump truck and performed the
routine duties of removing waste and garbage from the plant premises.
On Thursday, July 25. 1957. Swallick reported for work at approximately
4:15 p.m.. and had a conversation with Proprietor Walter Rasmussen and Shop
Steward Frank Huda with respect to his union membership status. Huda told him
to go down to the union hall of Local 469, and get his union book (card)
straightened out.. There was some discussion of rumors about. a strike at the
C. RASMUSSEN & SONS 687
Okonite plant, and Respondent Rasmussen directed him to proceed as usual to the.
plant, but not to cross any picket line. Upon arrival at Okonite, Swallick found
a picket line, and reported to the guard without crossing the picket line. There-
upon, he returned to the Rasmussen truck yard, and was released for the remainder
of the day. At that.time Walter Rasmussen told Swallick to see the union officials.,
early about his union card, that he could use his services next day.
At 6:30 a.m. on Friday, July 26, 1957, Paul Swallick went to the office of
Local 469, and discussed his situation with Secretary-Treasurer Frank J. Volosin..
He exhibited an identification card showing that he was a member in good stand-
ing of sister Local 701, and requested a transfer to Local 469. The secretary
told him that Willard Smith (member of Local 469) had requested a hearing on
his discharge by Respondent Rasmussen, and would go back to work there if his,
contentions about the grievance were right. Volosin further informed Swallick
that his application for transfer to Local 469 must be submitted for approval to,
the local executive board consisting of the president, vice president, recording secre-
tary, secretary-treasurer, and trustees of the local union (constitution, art. XXI,
sec. 2). Swallick then requested an interview with President Thomas J. Kelly,
was told that Kelly was on vacation, but could be interviewed about 10 a.m. on
the following Monday. Swallick then reported for work to Respondent Rasmussen,
and told both Walter Rasmussen and Shop Steward Frank Huda that he would.
see President Kelly on Monday. Thereupon, Rasmussen and Huda went.into the.
office to call Secretary-Treasurer Volosin. Upon their return, Swallick was au-
thorized to work that day, but Huda told him to be sure to see Tom Kelly or
Pat Reilly on Monday and get his union book straight. Rasmussen then at ap-
proximately 8:30 a.m. sent Swallick with a truck to Hayden Chemical Corporation
in Fords, N. J., where he worked until 4:30 p.m. At that time Rasmussen told
Swallick that he had work for him to do on Monday, and again warned him to,
see President Tom Kelly about his union card. After work hours that evening
Swallick again went to the union hall and conferred with Secretary Volosin con--
cerning the grievance filed by Willard Smith. At that time Volosin again stated
that President Thomas J. Kelly would be present on Monday about 10 a.m.
At 9:30 a.m. on `Monday, July 29, 1957, Paul. Swallick went to the office of
Local 469 and awaited the arrival of President Thomas J. Kelly.' Kelly entered.
his private office for a few minutes, but left before Swallick had an opportunity
to see him. Secretary Volosin suggested that he come back about 11:30 a.m.
Swallick returned at 10:45 a.m. and waited outside the office until Kelly drove up.
He then approached Kelly at his car and inquired whether Secretary Volosin had
told him about the Rasmussen case. Kelly said, "Yes, I got that Rasmussen
coming down. Tell you the truth, Swallick, my sister's got cancer, and I got to get
going any way, right away. I'll see you in a couple of days and everything will be
taken care of." Kelly admittedly on that same day called by telephone from Mana--
hawkin, N.J., and told Walter Rasmussen to meet him at the Perth Amboy office
of Local 469 at 10:30 a.m. on July 31, 1957, to discuss the Willard Smith case.
Rasmussen admittedly received such a telephone call on July 29, 1957, and ac-
cepted the appointment to meet Kelly as requested. Rasmussen also told Swallick-
that he had made such an appointment.
At approximately 10 a.m. on Wednesday, July 31, 1957. both Walter Rasmussen
and Paul Swallick appeared at the union hall of Local 469. While President
Thomas J. Kelly held a conference upstairs with Walter Rasmussen, Paul Swallick
applied to Secretary Volosin for permission to see President Kelly. Volosin-
notified Kelly that Swallick was waiting to see him, and Kelly said he would go
down to see him when he got time. Thereafter Swallick went upstairs to the room,
wherein the conference was in session. Upon his appearance at the door, Presi-
dent Kelly said, "What the hell are you doine here? Go down and send Frank
Volosin up here." Swallick then waited for Rasmussen until the conference was
over to inquire concerning any agreement reached. In reply to his inquiry;,
Rasmussen said: "Tom Kelly told me after the cement and concrete, strike is over,
we'll see what we can work out. Well, we'll leave it as it, is until the cement and
concrete strike is over." i On August 6, 1957, Swallick was paid in full for services
rendered, and told that there was no more work available.
^ The cement strike had no relationship to the strike at Okonite Manufacturing Com-
pany, and should not be confused therewith.
f.8$: DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strike at Okonite came to an end on Sunday, August . 25, 1957. . Swallick
immediately called Walter . Rasmussen . by telephone , and said : "Did you hear the;
good news ? The strike is over at Okonite ." Rasmussen ( in effect ). replied:
"That is good. You better get down to the hall and get yourself straightened out
It will be a day or two before they get started again ." In the meantime Rasmussen
requested Local 469 to send him a truckdriver . . Representative Emerson sent him
a chauffeur named Richard Reed. From the testimony of Walter Rasmussen it
is not entirely clear. when this transaction occurred. The testimony and,payroll,
records of. Respondent Rasmussen indicate that Richard Reed was hired and went
-to work on or about August 21, 1957.
At approximately 8:30 a.m. on Monday, August 26, 1955, Paul Swallick went
to the Rasmussen yard expecting to resume his work as truckdriver on the Okonite
job, but found the new employee (Richard Reed) in charge of the dump truck
and leaving the yard for the Okonite plant. At that time Rasmussen told Swallick
that Local 469 had sent him another truckdriver, but that he could use him
anyway if he would go down to the union hall and get a, clearance to work that
.day. Thereupon, Swallick went to the union hall, but did not find either President
Thomas J. Kelly or Secretary Frank J. Volosin, because both of them were
attending a union convention in Atlantic City. After discussing the matter with
.a female office assistant , he left his telephone number to be called when an
authorized representative was available . He later had a conversation with Repre-
sentative Savino (now deceased), but failed to reach any agreement by reason of
Savino's lack of authority to take action in the absence of President Kelly and
Secretary Volosin.
On Friday , August 30, 1957, Paul Swallick again went to . the union hall to see
Kelly and Volosin. After waiting around the office for 15 or 20 minutes he ob-
served President Kelly was leaving the premises in his automobile.. Swallick ran
up to the moving car and inquired how he stood on the Rasmussen case. Without
stopping to discuss the matter, Kelly said: "What Frank Volosin told you, that's
-the way it stands." Thereupon, Swallick apparently lost all hope of reaching any
agreement with respect to continuation of his employment with Respondent
Rasmussen , and on September 3, 1957, . filed a charge against Respondent Union
alleging unfair labor practices in violation of Section 8(b)(1)(A ) and (2) of the
Act. Subsequently on December 10, 1957, he filed a charge against Respondent"
Rasmussen alleging unfair labor practices in violation of " Section 8(a)(1) and
,(3) of the Act. . . -
C. Contentions of the Respondents -
The foregoing findings primarily from the testimony of - Paul Swallick are- not
substantially denied by the Respondents. -
Walter Rasmussen (Respondent ) testified in substance and contends that: He
had no agreement or understanding with Respondent Union concerning the em-.
ployment of Paul Swallick other than the provisions contained in the written
collective-bargaining agreement , supra, including the union -security clause requiring
that all his employees become members of the Union on or after 30 days following
the beginning of employment or the effective date of this. agreement, whichever
is the later; he never discussed the transfer problem of Paul Swallick with Pres-
ident Thomas J. Kelly or anyone else in Respondent Union except Shop Steward
Frank Huda; Swallick was laid off on July 26, 1957, because there was no work
available for him during the strike at : Okonite ; Swallick was paid in full on
August 6 , 1957; and told that there was no more work for him to do, which he
"considered tantamount to discharge ; he repeatedly urged Swallick to get his union
membership straightened out with. Local 469, and upon his failure to do so was
not entitled to a continuation of his employment with Respondent Rasmussen; he
needed a driver at the end of -the Okonite ' strike, and called 'upon ' Respondent
Union to furnish one; Local . 469 sent Richard Reed rather than Paul . Swallick;
he was under no further obligations to Swallick , because more than 30 "days had'
expired since he began work on July 23 , 1957; he could not reinstate or rehire
Swallick because he had not become a member of Local 469 on or after 30 days
as required in the contract ; and in .any event he had discharged , this man because
he was not a satisfactory employee , talk too much , and he just did not like him,
that .is all. -
Frank J . Volosin (secretary-treasurer of, Local . 469). testified in substance and
contends that : Paul Swallick came to his office several times ' seeking a ' transfer
C. RASMUSSEN & SONS 689
to Local 469 as a member in good standing from - sister Local 701; he told Swallick
that Willard Smith had been discharged from his job by Rasmussen, had requested
a hearing, and would go back to that job if he was right in his grievance con-
tentions ; despite the insistence of Swallick he refused to approve immediate
transfer , because it was required procedure that applications for transfer be sub-
mitted to and approved by the executive board; Swallick exhibited displeasure
because his transfer was not approved forthwith , and insisted on seeing President
Thomas J. Kelly; he did not discuss the matter of transfer with Respondent
Rasmussen , Shop Steward Frank Huda , President Thomas J. Kelly or anyone else
except Paul Swallick; he does not transfer a member to Local 469 until he brings
in a transfer card from a sister local union showing that he has paid up his dues
and is in good standing ; Local 469 does not require employers to hire employees
through the union hall and the union -security clause in the contract merely re-
quires that the employees become members at the end of 30 days after employ-
ment ; the grienvance of Willard Smith would not have prevented the transfer of
Swallick to Local 469, and had he brought in a transfer card from Local 701 it
would have been processed according to the regular procedure outlined in the
constitution; he does not believe any objections would have been raised; he had
no knowledge of Rasmussen 's request for another truckdriver in the latter part
of August until Representative Emerson told him the next day that Richard Reed
has been sent to the job; and his office has never in any way demanded or re-
quested Respondent Rasmussen not to continue the employment of Paul Swallick.
Thomas J. Kelly (president of Local 469) testified in substance and contends
that he was absent from the office of Local 469 during the entire month and
returned on July 31, 1957; he kept daily contact with his office by telephone, and
learned about the discharge of Willard Smith, but did not know that Paul Swallick
had been employed by Respondent or that he was seeking a transfer to Local 469;
he had known Swallick as a member of the Union for 10 or 12 years and had
always been on friendly terms with him; on July 29, 1957, he called Walter
Rasmussen by telephone from Manahawkin, N.J., and made an appointment to
meet him on July 31 at the union office in Perth Amboy to discuss the grievance
of Willard Smith ; immediately after the conference with Rasmussen he was ap-
proached by Swallick in the parking lot, but told him that he was very busy and
would see him later ; he does not recall having seen Swallick thereafter and did
not discuss with him at any time the matter of his transfer to Local 469; and
Secretary-Treasurer Frank J. Volosin has full authority to handle complaints, and
all top decisions are made by the executive board.
Concluding Findings
It is clear from all the evidence in this case that on July 26, 1957, the Re-
spondent Rasmussen laid -off its employee, Paul Swallick , both by. reason of his
failure to obtain' permission to work from Local 469 and because of a strike at
Okonite Manufacturing Company, which caused a work stoppage from July 25;
1957, through August 25, 1957. On August 26, 1957, Respondent Rasmussen re-
sumed performance of its contract to remove industrial waste from the Okonite
premises . Rather than reinstate Paul Swallick in his job of driving the dump
truck to haul the Okonite waste and garbage, he requested Local 469 to furnish
a driver for that purpose , knowing full well that Paul Swallick had applied for a
transfer from Local 701 to Local 469 and was having difficulties in obtaining such
transfer by reason of the pending grievance proceedings of former driver Willard
Smith. Respondent Union sent its member, Richard Reed, to take over this iob
with full knowledge that Swallick was a candidate for transfer from Local 701
to Local 469 in order to continue his employment with C. Rasmussen & Sons.
Respondent Rasmussen contends that Swallick: had lost his right to employment
by failing to become a member of Local 469 on or after 30 days from the date
he was hired on July 23, 1957, although he had worked only 3 days prior to
layoff on account of the strike at Okonite . I do not agree.
With respect to any employee who has been employed for more than 30 days,
the union-security clause contained in aforesaid collective -bargaining agreement
only requires the employer to discharge such employee within 7 days after
receipt of written notice from a properly authorized official of the Union. It is
505395-59-vol. 122-45
690 DECISIONS OF NATIONAL LABOR,-RELATIONS BOARD
admitted that Local 469 never sent such a notice to Respondent- Rasmussen. I am
convinced, however, that Local 469 -encouraged Walter Rasmussen to deny em=
ployment to Paul Swallick by obstructing and delaying his transfer' from Local 701
to Local 469, notwithstanding article XVII, section 1, of the constitution of Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, which provides as follows:
Section 1. It shall be compulsory upon every local union to accept the
transfer card of a member in good standing with any local union of the
International Organization, without extra charge or fees, except as provided
in the International Constitution, provided, -however, the member seeking to
transfer shall comply with all rules and regulations set forth in this Con-
stitution respecting transfer; and provided further he shall comply with rules
and regulations of the local and its constitution and by-laws. Such union
shall accord him opportunity for employment and all other rights and
privileges in accordance with the rules and regulations of the local union to
which he seeks to transfer.
It is admitted that Paul Swallick sufficiently identified himself as a member
in good standing of Local 701, and requested Secretary-Treasurer Frank J. Volosin
to approve his transfer to Local 469. Section 3, article XVII of the constitution
provides in substance that a member seeking a transfer shall make a request in
writing of the local union of which he is a member and from which he seeks to
transfer for the issuance of a transfer card to him, and shall also apply to the
secretary-treasurer of the local union into which he is seeking to transfer for ap-
proval of that secretary-treasurer so to transfer. No transfer card shall be issued
unless such approval has been obtained in writing attested to by such secretary-
treasurer. (Emphasis supplied.) It is, therefore, clear that the failure or refusal
of Secretary-Treasurer Frank J. Volosin. to furnish approval in writing of the
transfer of Paul Swallick to Local 469 effectively obstructed and prevented the
issuance of any transfer card to him by Local 701. By sending another employee
(Richard Reed) to replace Swallick, Local 469 either knowingly or unknowingly
caused Respondent Rasmussen to deny reinstatement to him at the end of the
Okonite strike on August 26, 1957.
I am therefore constrained to find that Walter Rasmussen d/b/a C. Rasmussen
& Sons (an employer) discriminated in regard to the hire and tenure of employ=
ment of Paul Swallick (an employee) to encourage or discourage membership
in a labor organization, as alleged in the complaint, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act. I further find that Respondent Union caused or attempted
to cause said employer to discriminate in violation of Section 8(a)(3) of the Act
against Paul Swallick, an employee with respect to whom membershipin Local 469.
has been denied on some ground other than his, failure to tender the. periodic
dues and initiation fees uniformly required as a condition of acquiring or retaining,. • ,
membership, thereby restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations 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
Finding that the Respondents have engaged in and are engaging in certain unfair
labor practices affecting commerce, I shall recommend that they, cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondents' have unlawfully discriminated in regard to his
hire and tenure of employment, I shall recommend that Respondent Rasmussen
offer to -Paul Swallick immediate reinstatement to his former or substantially
equivalent position without prejudice to seniority and other rights and privileges;
2 See Chase National Bank, etc., 65 NLRB 827.
.'C: RASMUSSEN.& .SONS 691
and that Respondent Rasmussen and Respondent Union jointly and severally make
Paul Swallick whole for any loss of pay suffered by reason of the discrimination
by the payment to him of a sum- of money equal to the amount he would have
earned from the date of his layoff or discharge on July 26, 1957, to the date on
which Respondent Rasmussen shall offer him proper reinstatement as herein
provided, less net earnings,3 to be computed on a quarterly basis in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up
Bottling Company, 344 U.S. 344. Earnings in one particular quarter shall not
affect the back-pay liability for any other such period. Due consideration may be
given to the fact that during the period from July 26, 1957, through August 26,
1957, Respondent Rasmussen may not have been in a position to provide full-
time employment by reason of the strike at Okonite Manufacturing Company,
but should have provided work to the extent available according to his hiring
agreement with this employee.
It will be recommended also that Respondent Rasmussen preserve and make
available upon request to the Board or its agents, for examination and reproduc-
tion, all personnel reports, timecards, payrolls and social-security accounts, and
all other records necessary to analyze, compute., and determine the amounts of
back pay and other employment rights and privileges to which the dischargee
herein may be entitled by reason of the discrimination against him.
Respondent Union shall not be liable for back pay accruing after it shall have
notified Respondent Rasmussen in writing that all objections to the employment
of Paul Swallick have been withdrawn and that it formally requests his re-
instatement.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Walter Rasmussen d/b/a C. Rasmussen & Sons is an employer within the
meaning of Sections 2(2) and 8(a) of the. Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 469, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization within the meaning of
Sections 2(5) and 8(b) of the Act.
3. By discriminating in regard. to the hire and tenure of employment of Paul
Swallick, both prior to and after the expiration of 30 days from the beginning
of his employment, by requiring him to obtain clearance from and become a
member of Respondent Union as a condition of employment prior to the 30th
day following the beginning of such employment and when he had reasonable
grounds for believing that such membership was not available to said employee on
the same terms and conditions generally applicable to other members and that
such membership was denied for reasons other than the failure of said employee
to tender the periodic dues and initiation fees uniformly required as a condition
of acquiring or retaining membership, the Respondent Walter Rasmussen d/b/a
C. Rasmussen & Sons has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
4. By causing or attempting to cause Respondent Walter Rasmussen d/b/a
C. Rasmussen & Sons to discriminate in regard to the hire and tenure of employ-
ment of Paul Swallick with respect to whom membership by transfer from a sister
local union has been denied on grounds other than his failure to tender the
periodic dues and initiation fees uniformly required as a condition of acquiring
or retaining membership, Respondent Local 469, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
See Croaaett Lumber Company, 8 NLRB 440, 497-498.