Carlyle Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1950

92 N.L.R.B. 385 (N.L.R.B. 1950)

In the Matter Of CARLYLE RUBBER CO., INC. AND PLUMBING, HARD-.
WARE, PAINT, ELECTRICAL SUPPLIES & AUTO ACCESSORIES UNION,.
LOCAL 1146, R. C. I. A., AFL and HENRY ORR, ON BEHALF OF HENRY
ORR, WILLIE WHITE, CHARLES COTTON AND JOSEPH CARROL,.
INDIVIDUALS
Cases Nos. 2-CA-051 and 2-CB-68.Decided November 30,1950.
DECISION AND ORDER
On May 26, 1950, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled consolidated proceedings, find-.
ing that the Respondents, Carlyle Rubber Co., Inc., herein called the
Respondent Company, and Plumbing, Hardware, Paint, Electrical
Supplies & Auto Accessories Union, Local 1146, R. C. I. A., AFL,.
herein called the Respondent Union, had engaged in and were en-
gaging 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. The
Trial Examiner also found that the Respondent Union had not en-
gaged in certain other alleged unfair labor practices, and recom-
mended dismissal of these allegations of the complaint. Thereafter,
the Respondent Company filed a brief.' The Respondent Company
also requested oral argument. This request is hereby denied because,
in our opinion, the record and brief adequately present the issues and
positions of the parties.
The Board 2 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.3 The Board has considered the Inter-:
IIn accordance with the Company 's request , its brief before the Trial Examiner is
considered as part of its brief before the Board.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three-member panel
[ Members Houston , Murdock , and Styles].
3 At the hearing , the Trial Examiner denied the Respondent Company's motion to
vacate the consolidation of these cases , and its later motion to dismiss the complaint
allegedly because it had been prejudiced by the consolidation .. The Respondent Company
contends that the Trial Examiner, in concluding that the Respondent Company had vio=
lated the Act , erroneously relied on evidence admitted against the nonappearing Respond-
ent Union, consisting particularly of letters from Kornreich , the Respondent Union's
manager, to the New York State Board: of Mediation. As we do not rely on any of this
92 NLRB No. 70.
385
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the brief, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions and modifications :
1. We agree with the Trial Examiner's conclusions that, by dis-
charging Henry Orr, Willie White, Charles Cotton, and Joseph
Carrol, on March 19, 1948, the Respondent Company violated Section
8 (a) (3) and 8 (a) (1) of the Act and that, by causing and attempting
to cause the Respondent Company to do so, the Respondent Union
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
In adopting these conclusions, we rely solely on the following. criti-
cal facts : On November 1, 1946, the Respondents executed a 1-year
contract covering the Respondent Company's production and mainte-
nance employees, in which the Respondent Company agreed, in rele-
vant part, that it would employ "none but members in good standing
of the union" and that it would "discharge anyone employed .. .
within 24 hours after notice by the union that any such employee is
not a member in good standing." On November 1, 1947, after the
effective date of the amended Act, this agreement was automatically
renewed as a result of the failure of either party to give at least 30
days' notice of intention to terminate, as required by the contract.
Upon the renewal of the contract, the Respondent Company's em-
ployees ceased paying dues to the Union, and the latter thereafter
made continual demands upon the Company to discharge all em-
ployees who were delinquent in their dues. On March 19, 1948,
Kaminsky, the Respondent Company's president, discharged substan-
tially all the employees in the bargaining unit ,4 telling them that he
was doing so on the demand of the Union.
The Respondent Company contends that it discharged the com-
plainants, not because of their failure to maintain good standing
in the Union, but because of their continued inefficiency, coupled with
a decline in business; and that it decided to discharge all its employees
and rehire the competent ones in order to avoid embarrassing ex-
planations. In support of these contentions, it asserts that, although
the Respondent Union made many requests for the discharge of em-
ployees not in good standing, the Company continually refused to
accede to these demands.
evidence in reaching our conclusions herein, we find that the Respondent Company was
not prejudiced by the consolidation of these cases. Accordingly , we hereby affirm the
Trial Examiner's denial of the above-mentioned motions.
' As stated by the Trial Examiner , there were about 10 or 11 employees in the bargain-
ing unit at that time. Of these, only 2, Henry Harris and James Smith, were not dis-
charged. Harris was a cousin of Kaminsky and Smith had been in the Company 's employ
for almost 30 years.
CARLYLE RUBBER CO., INC. 387
We find no merit in these contentions. With respect to the alleged
inefficiency of the complainants, the Company asserts that they had
been poor workers for several years before their discharges, but that
it had not discharged them earlier because of the wartime labor
shortage which existed until July 1947 and because it wanted to wait
until the "union trouble" was over. We note, however, that the Com-
pany discharged several other employees for inefficiency during that
period. Moreover, it now advances no valid reasons for retaining the
complainants during the period when they were allegedly inefficient
and, at the same time, discharging other employees who were poor
workers.
We are also aware, as the Company contends, that, for several
months before the discharges, the relations between the Respondents
were far from amicable. This is evidenced by the facts that the Re-
spondent Company continually resisted the Union's discharge de-
mands; that Kaminsky suggested to Orr, in the middle of November
1947, that the latter circulate a "petition" among the employees to
the effect that they no longer wished to be represented by the Union;
and that, in January 1948, and at various times thereafter, Kaminsky
questioned Orr about the progress being made with the antiunion
petition. However, this evidence of inimical relations between the
Respondents loses its significance in view of the Respondent Com-
pany's complete reversal of position on March 19, 1948, the day of the
discharges. Thus, when Orr presented the signed petition to Kamin-
sky, at about 3 o'clock' that afternoon, Kaminsky pushed it aside,
stating that he had "lost a case" with the Union and did not care "to
have anything to do with it." In addition, Kaminsky told the em-
ployees shortly threafter, when he discharged them, that he was doing
so on the demand of the Union.5 Indeed, in our view, the Company's
conduct on March 19 completely" refutes its contentions and clearly
establishes that the real reason for terminating the employment of
the complainants was the Company's compliance with the Union's
demands.
The Respondent Company contends, however, that events subse-
quent to the discharges show that the Company was not complying
with the Union's demands. Thus, three of the discharged employees,
Rochelle, Holcombe, and Dixon, were rehired about a week later,
without the payment of their delinquent dues, and these three em-
5 Six of the employees discharged at that time, including Rochelle and Holcombe, who
were later rehired, so testified. Kaminsky testified that he told the men that he was
discharging them because he was "fed up with their work , . . . the Union and everyone
else." ( Emphasis supplied.)
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were not required to maintain good - standing in the Union
after their reinstatements The Company argues that, if it were ac-
ceding to the Union's demands to discharge all employees not in good
standing, it would not have rehired Rochelle, Holcombe, and Dixon,
who like the complainants, were also delinquent in their dues. How-
ever, Kaminsky himself testified that he informed the Respondent
Union on the morning of March 19 that he was going to discharge
nine employees and rehire three or four, and that the Union approved
this plan. This is substantiated by the fact, as found by the Trial
Examiner, that a union representative informed the discharged em-
ployees about a week later, when he refused to accept their back dues,
that some of the men would be rehired, but that he did not know
which ones. As stated above, on the afternoon of March 19, after
Kaminsky had informed the Union of his plans, Orr presented the
signed antiunion petition to Kaminsky, who pushed it aside. It is
highly unlikely that, after having suggested the petition as a means
of getting rid of the Union, Kaminsky would have been uninterested
in it when it was finally presented to him, unless he had already come
to an agreement with the Respondent Union. Thus, it appears, and we
find, that, after having resisted , the Union's demands for several
months and after having had no success with the antiunion petition
it had initiated, the Respondent Company finally decided to reach a
compromise with the Respondent Union, and agreed, on the morning
of March 19, to discharge substantially all employees who were delin-
quent -in their dues 7 on the condition that it could rehire three or
four of them. In view of the Respondent Union's approval, we find
that the rehiring of Rochelle, Holcombe, and Dixon without the pay--
ment of their delinquent dues is not inconsistent with our conclusion
that Orr, White, Cotton, and Carrol were discharged, in compliance.
with the Respondent Union's demands, because of their failure to
maintain good standing in the Union.8 And as this was the real
Unlike the Trial Examiner , we find that Kaminsky 's uncontradicted testimony, which
was not discredited , is sufficient evidence to establish these facts . Although we find,
therefore , that these three employees did not maintain good standing in the Union after
their reinstatement , we do not believe that this is inconsistent with our ultimate con-
clusions herein . We note , in this connection , that in June or July 1948 , the Union
instituted another proceeding before the New York State Board of Mediation to determine
whether or not the Company was obligated to comply with the union-security provisions
of the contract . Although the reasons for this proceeding-are speculative , it may have
been caused, at least in part, by the fact that these three employees were still not paying
dues to the Union.
4 As stated in footnote 4, supra , Harris and Smith were not discharged . Kaminsky
stated , at the time of the discharges , that he had pleaded with the Union to allow him
to retain Harris and Smith and that the Union had agreed.
8 We note, in this connection , that, upon hiring replacements for the complainants; the
Respondent Company advised these new employees of its contract with the Respondent
Union and , in accordance with the contract, asked them to go to the Union to obtain
work permits.
CARLYLE RUBBEIR CO., "-iNC. 389
reason for their discharge , it is immaterial that the complainants may
have been less competent than those employees whowere subsequently
rehired.9
It is clear , therefore , that the Respondent Company's discharge
of Orr, White, Cotton , and Carrol was discriminatory within the
meaning of Section 8 ( a) (3) of the Act unless the Respondent Com-
pany was protected by a valid union-security agreement . As found
by the Trial Examiner, however , the 1946 contract , as automatically
renewed on November 1, 1947, was without legal effect because it con-
tained union-security provisions not sanctioned by Section 8 (a) (3)
of the Act and because the Respondent Union had never been author-
ized by the Board to enter into a union-security agreement. We
therefore find that, by discharging Orr, White , Cotton, and Carrol on
March 19, 1948, because of their failure to maintain good standing in
the Respondent Union, the Respondent Company violated Section 8
(a) (3) and 8 ( a) (1) of the Act.10
Furthermore , it is clear that, in discharging the complainants, the
Respondent Company was complying with the Union 's demand that
they be discharged , pursuant to the illegal union -security contract,
because of their failure to maintain good standing in the Union. We
therefore find that the Respondent Union caused the Respondent
Company to discriminate against employees in violation of Section
8 (a) (3) of the Act, thereby violating Section 8 (b) (2) and 8 (b)
(1) (A) of theAct"
2. The Trial Examiner also found that, by its renewal and con-
tinuance of the illegal union -security contract with the Union, the
Respondent Company violated Section 8 ( a) (3) as well as Section
8 (a) (1) of the Act. As no exception has been taken to this finding,
we adopt it without comment.12
3. As no exception has been filed to the Trial Examiner 's failure
to find, as alleged in the complaint, that, by its renewal and continu-
ance of the illegal union - security contract , the Respondent Union
violated Section 8 (b) (1) (A).of the Act, we deem it unnecessary
to pass upon this issue 13
The Remedy
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom
e See Ray Smith Transport Company, 89 NLRB 1045.
10 Kingston Cake Company, Inc., 91 NLRB 447, and cases cited herein. - -
11 Lloyd A . Fry Roofing Company, 89 NLRB 854 ; Clara-Val Packing Company, 87 NLRB
703; Kingston Cake Company , Inc., supra, footnote 10.
12 Acme Mattress Company, Inc., 91 NLRB 1010.
13 Acme Mattress Company, Inc., supra, footnote 12.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
and to take certain affirmative action' designed to effectuate the poli-
cies of the Act.
In view of the circumstances attending the discrimination against
Orr, White, Cotton, and Carrol, and the fact that the Respondents'
past conduct does not suggest the danger that other unfair labor prac-
tices will be committed in the future, we believe that the issuance of
a broad cease and desist order against either of the Respondents is
unwarranted. Therefore, in accordance with Board practice in cases
of this type,14 we shall order-the Respondents to cease and desist from
the unfair labor practices found, and any like or related conduct.
It was stipulated at the hearing that the discriminatees do not desire
reinstatement. Therefore, we shall not order their reinstatement.
However, as we have found that both the Respondent Company and
the Respondent Union are responsible for the discrimination suffered
by Orr, White, Cotton, and Carrol, we shall, like the Trial Examiner,
order them jointly and severally 15 to make the discriminatees whole
for any loss of pay they may have suffered as a result of the discrimi-
nation against them. In accordance with the formula promulgated
in F. W. Woolworth Company,'6 and for the reasons stated therein,
we shall order that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from
March 19, 1948, the date of the discriminatory discharges, to Novem-
ber 22, 1949, the date upon which the instant hearing commenced.
The quarterly periods, hereinafter called quarters, shall begin with
the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which each of
the discriminatees normally would have earned as wages during each
such quarter or portion thereof, his respective net earnings, if any,
during the same period. Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter.
We shall further order, in accordance with the Woolworth de-
cision,17 that the Respondent Company, upon request, make available
to the Board and its agents all records pertinent to an analysis of
the amounts of back pay due.
ORDER
Upon the entire record in these cases and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that :
14 Kingston Cake Company , Inc., supra, footnote 10; New York Shipbuilding Corporation,
89 NLRB 1446; Randolph Corporation, 89 NLRB 1490.
15 H. M. Newman , 85 NLRB 725, Acme Mattress Company, Inc., supra, footnote 12.
36 90 NLRB 289.
17 Supra, footnote 16.
CARLYLE RUBBER CO., INC. 391
1. The Respondent, Carlyle Rubber Co., Inc., New York, New
York, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Encouraging membership in Plumbing, Hardware, Paint,
Electrical Supplies & Auto Accessories Union, Local 1146, R. C. I. A.,
AFL, or in any other labor organization of its employees, by discharg-
ing any of its employees or discriminating in any other manner in
regard to their hire or tenure of employment or any term or condi-
tion of their employment;
(2) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in 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) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to an analysis of the amounts
of back pay due under the terms of this Order;
(2) Post at its place of business in New York, New York, copies
of the notice attached hereto and marked Appendix A.18 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent Company's
representative, be posted by the Respondent Company immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent Company to insure that said notices are
not altered, defaced, or covered by any other material;
(3) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent Company has taken to comply herewith.
2. The Respondent, Plumbing, Hardware, Paint, Electrical Sup-
plies & Auto Accessories Union, Local 1146, R. C. I. A., AFL, its
officers, representatives, and agents, shall :
v In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
:392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Cease and desist from :
(1) Causing or attempting to cause Carlyle Rubber Co ., Inc., its
officers, agents , successors , or assigns , to discharge or otherwise dis-
criminate against its employees in violation of Section 8 (a) (3) of
the Act;
(2) In any like or related manner restraining or coercing employees
,of Carlyle Rubber Co ., Inc., its successors or assigns , in the exercise
.of their rights to engage in, or to refrain from engaging in, any or
all of the concerted activities specified in Section 7 of the Act, except
to the extent that such right may be affected by an agreement re-
-quiring membership in a labor organization as a condition of employ-
ment, as authorized in 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) Post at its offices in New York, New York, and wherever notices
-to its members are customarily posted, copies of the notice attached
hereto and marked Appendix B.19 Copies of said notice , to be fur-
nished by the Regional Director for the Second Region , shall, after
being duly signed by the Respondent Union's representative , be posted
by the Respondent Union immediately upon receipt thereof and
maintained by it for sixty ( 60) consecutive days thereafter , in con-
spicuous places, including all places where notices to members are
-customarily posted. Reasonable steps shall be taken by the Respond-
ent Union to insure that said notices are not altered , defaced, or cov-
,ered by any other material;
(2) Mail to the Regional Director for the Second Region signed
-copies of the notice attached hereto as Appendix B,-for posting, the
.Respondent Company willing, at the place of business of the Respond-
ent Company in New York, New York, in places where notices to em-
ployees are customarily posted. Copies of said notice , to be fur-
nished by the Regional Director for the Second Region, shall, after
being duly signed as provided in paragraph 2 (b) (1) of this Order,
be forthwith returned to the Regional Director for- such posting;
(3) Notify the Regional Director for the Second Region , in writ-
ing, within ten (10 ) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
3. The Respondents , Carlyle Rubber Co . , Inc., New York, New
York, its officers, agents, successors , and assigns , and Plumbing,
Hardware, Paint, Electrical Supplies & Auto Accessories Union,
Local 1146, R. C. I. A., AFL, its officers , representatives, and agents,
shall jointly and severally , in the manner set forth in the . section
entitled "The Remedy ," make whole Henry Orr, Willie White,
" Ibid.
CARLYLE RUBBER CO., INC. 393:
Charles Cotton, and Joseph Carrol for any loss of pay- each of -them
may have suffered as a result of the discrimination against him.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges other
violations of the Act, be, and it hereby is, dismissed.
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, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in PLUMBING, HARDWARE,
PAINT, ELECTRICAL SUPPLIES & AUTO ACCESSORIES UNION, LOCAL
1146, R. C. I. A., AFL, or in any other labor organization of
our employees, by discharging any of our employees or dis-
criminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or-coerce our employees in the exercise of the right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
WE WILL make whole the individuals named below for any loss
of pay suffered as a result of our discrimination against them:
Henry Orr Charles Cotton
Willie White Joseph Carrol
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership or nonmembership in any such
labor organization.
CARLYLE RUBBER CO., INC.,
Employer.
Dated -------------------- By ------------------------------
(Title ) ( Representative)
929979-51-vol. 92 27
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
0
APPENDIX B
NOTICE
TO ALL MEMBERS OF PLUMBING, HARDWARE, PAINT, ELECTRICAL SUPPLIES
& AUTO ACCESSORIES UNION5 LOCAL 1146, R. C. I. A., AFL, AND TO ALL EM-
PLOYEES OF CARLYLE RUBBER CO., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations-Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause CARLYLE RUBBER CO.,
INC., its officers, agents, successors, or assigns, to discharge or
otherwise discriminate against its employees because they are not
members in good standing of PLUMBING, HARDWARE, PAINT, ELEC-
TRICAL SUPPLIES & AUTO ACCESSORIES UNION, LOCAL 1146, R. C.
I. A., AFL, except in accordance with the provisions of Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees Of CARLYLE RUBBER CO., INC., its successors or assigns,
in the exercise of their right to self-organization, to form; join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole the individuals named below for any loss
of pay suffered as a result of the discrimination against them :
Henry Orr Charles Cotton
Willie White Joseph Carrol
PLUMBING, HARDWARE, PAINT,
ELECTRICAL SUPPLIES &
AUTO ACCESSORIES UNION,
LOCAL 1146, R. C. I. A.,
AFL,
Labor Organization.
Dated----------------- By----------------------------------
(Representative ) (Title)
)
CARLYLE" RUBBER CO., INC. 395
This 'noltice must remain `Hosted for 60 days froi the date hereof,
and must not be altered, defaced , or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Warren.H. Leland, Esq., for the General Counsel.
David R. Kaminsky, Esq., of New York, N. Y., and Finkelstein & Hirshfield, by
Victor Hirsh field, Esq., of New York, N. Y., for the Company.
STATEMENT OF THE CASE
Upon charges duly filed by Charles Holcombe and Henry-Orr, individuals, the
General Counsel for the National Labor Relations Board,' by the Acting Regional
Director for the Second Region (New York, New York), issued a complaint dated
July 28, 1949, against Carlyle Rubber Co., Inc., herein called the Company, and
Plumbing, Hardware, Paint, Electrical Supplies & Auto Accessories Union, Local
1146, R..C. I. A., AFL, herein called the Union, and jointly called the Respondents,
alleging that the Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 8 (b). (1) (A) and (2), respectively, and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the complaint, accompanied by an order consolidating the cases
and notice of hearing, and copies of the respective charges, were duly served upon
the Respondents.
With respect to the unfair labor practices, the complaint as amended at the
hearing alleged in substance that (a) on November 1, 1.947, the Company and
the Union renewed an earlier agreement which provided inter alia that the Com-
pany would retain in its employ only members in good standing of the Union
and, upon demand of.the Union, would discharge any employee not in good stand-
ing; (b ) on March 19, 1948, the Company, at the demand of the Union, discharged
Henry Orr, Willie White, Charles Cotton, and Joseph Carrol, herein jointly called
the Complainants, and thereafter refused to reinstate them to their former or
substantially equivalent positions, because of their refusal or failure to remain
members in good standing of the Union; and (c) by each of these acts the Com-
pany violated Section 8 (a) (1) and (3), and the Union violated Section 8 (b) (1)
(A) and (2), of the Act'
The Company's answer, dated August 29, 1949, tacitly admits certain alle-
gations of the complaint concerning its corporate structure and business activi-
ties and expressly admits that "at various times" the Union demanded of the
Company the discharge of employees not in good standing in the Union. The
answer denies, however, that the demands were granted by the Company, that the
collective bargaining agreement was renewed by the Company on November 1,
1947, and that the Company had engaged in unfair labor practices.'
I The General Counsel and the attorney representing him at the hearing are referred
to as the General Counsel. The National Labor Relations Board is referred to as the
Board.
The complaint alleges violations of Section 8 (b) (1) by the Union. It is clear from
the specific allegations and the evidence that Section 8 (b) (1) (A), rather than 8 (b),
(1) (B), was intended.
'The Company's answer raises a separate defense that 3 of the complainants did not
sign the charges and that Complainant Orr, who did sign them, was capable of acting
only in an individual capacity . This proposition has no merit . See Section 203.9 of t1w
Board 's Rulessand Regulations , Series 5 , as amended August 18 , 1948 ; Duro Test Corpora-
tion. 81 NLRB 976.
396 DECISIONS OF NATIONAL LABQR RELATIONS BOARD
By letter of August 29, 1949, to the Acting Regional Director, tht'( Union de-
nied the allegations of the complaint. On the following day, the Eegional Di-
rector wrote to the Union, advising that an answer must be submitted in the
form prescribed by the Board' s Rules and Regulations. There was no reply
to this communication, and no answer was filed by the Union.
Pursuant to notice, a hearing was held on November 22 and 23 and December
6, 1949, at New York, New York, before the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Company
were represented by counsel and both participated in the hearing. No appear-
ance was entered on behalf of the Union. Full opportunity to examine and
cross-examine witnesses and to introduce evidence bearing on the issues was
afforded all parties. At the opening of the hearing, the Company mo,, ed to va-
cate the consolidation of the cases because of the failure of the Union to file an
answer or to appear at the hearing, and the General Counsel moved for a de-
fault judgment and a judgment on the pleadings against the Union. These mo-
tions were denied. At the conclusion of the General Counsel's case, the Com-
pany moved to dismiss the complaint as to it upon the grounds that (a) the
General Counsel had not established a prima facie case and (b) the Company
had been prejudiced by the denial of its motion to vacate the consolidation.
This motion too was denied. At the conclusion of the hearing, the Company
again moved that the complaint be dismissed as to it, and this motion was taken
under advisement. It is hereby denied. The General Counsel moved to con-
form the pleadings to the proof as to minor matters, and this motion was granted
without objection. The General Counsel and the Company did not avail them-
selves of an opportunity to argue orally, but pursuant to leave granted they
filed briefs. The Union was advised by the Acting Chief Trial Examiner of
its right to file a brief, as described below, but no brief was filed by it.
At the close of the hearing, the General Counsel. referred briefly to a letter
of December 2, 1949, to him from Martin V. Kornreich, manager of the Union,
in which Kornreich said that it was agreeable to the Union for the hearing to pro-
ceed in his absence provided that upon its completion he be given an opportunity
to read the record and thereafter to present witnesses "if necessary." This letter
had been written during a 2-week recess in the hearing, which occurred during
the presentation of the Company's defense. On December 7, the next day after
the close of the hearing, the General Counsel responded in writing to the Union's
letter, advising that the hearing had been closed. On December 8, Kornreich
wrote to the Chief Trial Examiner, enclosing copies of the correspondence of
December 2 and 7, saying that he was ill and had been unable to attend the
hearing, and asking for "the opportunity of presenting witnesses if necessary."
On December 13, the Acting Chief Trial Examiner responded to Kornreich's let-
ter, with copies to counsel in the case, advising that the issues were before me
for initial determination ; that the parties, including the Union, had the right
to file briefs within a specified time; and that, if the Union wished, it might file
promptly with me a motion , in accordance with the Board 's Rules and Regula-
tions, to reopen the hearing for the purpose of affording the Union another op-
portunity to present witnesses . No motion to reopen was filed by the Union.
Instead, on January 4, 1950, Kornreich wrote to me enclosing his affidavit for
consideration in a determination of the issues. On January 10, I replied, with
copies to counsel, denying Kornreich's request that his affidavit be given con-
sideration upon the following grounds: (a) The failure of the Union to avail it-
self of the opportunity to appear at the hearing and there to offer evidence in
its own behalf; (b) the failure of the Union to follow the appropriate pro-
CARLYLE RUBBER CO., INC. 397
cedure of moving to reopen the hearing, as outlined in the Acting Chief Trial
Examiner's letter of December 13, 1949; and (c) the General Counsel and the
Company would be deprived of their right to cross-examine Kornreich were his
affidavit to be considered as evidence. On January 12, Kornreich replied to my
letter saying that he had made "many requests for an adjournment," which were
"never granted."' As the record discloses, there was no request of me by the
Union for an adjournment during the hearing. Nor was there such a request of
me at any other time. Moreover, as the record also shows, the Union was aware
of the progress of the hearing through my telegraphic advice to it concerning
the 2-week adjournment.'
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation, has its principal office and place of
business in New York City where it is engaged in wholesale jobbing and distri-
bution of industrial rubber products. During the year 1948, the Company pur-
chased rubber products valued in excess of $1,000,000, approximately 90 percent
of which was shipped to the Company from points outside the State of New Yoik.
During the same year, the Company sold various products, including belting,
hose, packing, and tubing, valued at $800,000 to $1,000,000, approximately 90
percent of which was shipped to points outside the State of New York. The Com-
pany concedes, and I find, that it is engaged in commerce within the meaning of
the Act.
II. THE UNION
Plumbing, Hardware, Paint, Electrical Supplies & Auto Accessories Union,
Local 1146, R. C. I. A., AFL, is a labor organization admitting to membership
employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary
The issues here arise from the union security provisions of a contract between
the Company and the Union executed during November 1946, a renewal of the
contract during 1947 after the enactment of the amendments to the Act, and the
discharge of employees on March 19, 1948, allegedly pursuant to the union
security provisions.
B. The facts
For some years prior to 1946, the Company was not under a contractual rela-
tionship with any labor organization. On November 1, 1946, the Company and
the Union executed a 1-year agreement by which the Union was recognized
4 The letters of December 2, December 7, December 8, December 13, and January 4 are
hereby received in evidence as Trial Examiner's Exhibits 3 to 7 inclusive, respectively.
The affidavit by Kornreich is hereby received in evidence as Trial Examiner's Exhibit 8 for
procedural purposes only and not as evidence relating to the issues . The letters of
January 10 and January 12 are hereby received in evidence as Trial Examiner's Exhibits
0 and 10, respectively.
6 Cf. Mission Oil Company, et at., 88 NLRB 743, where a respondent failed to file an
answer to the complaint and to appear at the hearing.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of the Company 's employees excluding clerical
workers and salesmen . The legality . of this agreement , as of the date of
execution, is not an issue under the pleadings.
The union security provisions are as follows :
1. The employer agrees to employ ... none but members in good stand-
ing of the union . . .
2. The union shall be sole judge of the standing of its members and the
employers agree to discharge anyone employed by him, it or them within
24 hours after notice by the union that any such employee is not a member
in good standing . Oral demand for discharge of any employee under this
Section 2, shall be deemed sufficient..
3. All steady and/or extra employees shall be obtained from the office of
the union . In the event that the union shall not be able to supply any
employee , then the employer may attempt to obtain employees from any
source whatsoever and shall notify in writing, the union , that he, it or
them have hired such new employees , within 48 hours from the time of the
commencement of the new employment . It shall be the duty of the employer
to see that any new employees shall become a member [sic] of the union
within four weeks from the date of the commencement of his employment.
4. In employing members of the union, the employer agrees to require of
such members a Work Permit or Dues Book signed by an authorized repre-
sentative or officer of the union before employing same. In employing per-
sons who are not in the union, a Work Permit must be secured from the
union , duly signed before commencing their employment.
Paragraph 16 of the agreement contains the renewal provision . It reads:
16. This agreement shall go into effect on the day above written and shall
remain in full force and effect and shall be binding on the parties hereto,
their administrators, executors and assigns until one year from said date.
This contract shall automatically be renewed from year to year unless at
least 30 days notice of intention to terminate the said agreement is given
by either party. Although the contact [ sic] shall be renewed as provided
herein, provision is hereby made for the automatic reopening of negotiations
for wages , hours and terms of employment at or about the anniversary date.
Shortly after the execution of the contract, Henry Orr, an employee, was
designated shop steward by the employees in the bargaining unit. One of his
duties was to collect dues from them.
During October 1947, near the end of the initial period of the contract, Abra-
ham J. Kaminsky , president of the Company , told Orr that he "did not want
a union in the shop" and that Orr should inquire 'of the employees to ascertain
their wishes and report back to Kaminsky . Orr related this conversation to the
men. At that time, however , neither party to the contract had given to the
other the 30 days' notice required to terminate it under paragraph 16 above
quoted. Kaminsky testified that he was unaware of the renewal provision and
believed that the contract was for a fixed period of 1 year only.
On November 3, 1947, Kornreich , the manager of the Union , called upon
Kaminsky and said that the contract had been renewed automatically for
another year. Kaminsky argued that the contract had expired . During the
morning of the same day, two delegates of the Union , identified as Mink and
Marino, came to the plant and talked with Shop Steward Orr. He informed
them that the employees were opposed to the Union , but he was told that the
CARLYLE RUBBER CO., INC. 399
employees were "automatically in the union anyway for another year." Orr
then went to Kaminsky and informed him of the conversation with the delegates,
and, Kaminsky disputed the delegates' contention that the contract had been
renewed. During the noon hour, the delegates returned to talk with-the em-
ployees. They advocated continued affiliation with the Union, but without
success. The employees stated that they were dissatisfied, and thereafter Orr
,ceased to collect dues. None of the complainants made further payments.
Later during November, Kaminsky told Orr that the contract had "auto-
matically renewed itself" and suggested that Orr prepare a "petition" for the
signatures of the employees to the effect that they did not wish to be represented
by the Union, in order that it might be used in connection with the dispute'
During the latter part of that month, according to Kaminsky, the Union orally
requested that he discharge employees who were delinquent in dues, and as
appears below the Union instituted proceedings before the New York State
Board of Mediation to resolve the issue over the automatic renewal of the
contract.
On December 4, 1947, the Mediation Board wrote to the Company and the
Union, advising them of an informal mediation conference to be held on
December 9. The conference was postponed to December 12, however. On
or about that day, in the proceeding before that Board, its representative
stated orally that the contract had been renewed automatically. During both
the early and latter parts of that month, according to Kaminsky, the Union
again orally requested that the Company discharge employees who were
delinquent in their dues.
During January, Kaminsky asked Orr whether he had obtained the signa-
tures of the men to the petition, and Orr answered in the negative.° On later
occasions, Kaminsky made the same inquiry of Orr, and received the same
answer. There is testimony by Orr that the men withheldraction on the petition,
hoping to secure a wage increase, but it does not appear that this purpose was
communicated to Kaminsky.
During February 1948, the Union instituted another proceeding before the
Mediation Board' This proceeding, as discussed below, involved the Union's
demand for the discharge of employees who were delinquent in their dues.
Kaminsky testified that as early as July 1947 Kornreich had demanded the
institution of the checkoff, or, in the alternative, the discharge of employees
who were in arrears in their dues or who, for any reason suitable to the Union,
should be discharged. This demand, according to Kaminsky, was renewed
"constantly," particularly during each month of January to April 1948.
On February 3, Kornreich wrote to Kaminsky, asserting that he had tried
on four occasions to communicate with Kaminsky by telephone, that the Company
was "delaying matters," and that in the absence of a prompt response the Union
would utilize the services of the Mediation Board. On February 4, Kaminsky
6 This finding is based upon the testimony of Orr. On the other hand, Kaminsky testi-
fied that about the middle of November, when he was "in the midst" of his dispute with
the Union about renewal of the contract, Orr came to him and asked what the men could
do to avoid membership in the Union, and that he replied that they could petition the
Union to permit the withdrawal of their memberships. For reasons which appear below,
Kaniinsky 's testimony in a number . of instances is rejected , and his version of this
conversation with Orr is rejected also.
4 This finding is also based upon Orr's testimony . Kaminsky testified that the con-
versation consisted of Orr's mentioning "something about the boys not signing the
petition ," but that he made no comment whatsoever.
8 The contract provided for arbitration by the Mediation Board.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied, saying that he had been out of town and inquiring as to the nature of
the matter to be submitted to the Mediation Board. By February 5, the Union
had invoked the services of that Board, which • wrote to-, the- Company and
the Union that day and advised that it had named an arbitrator who would
conduct a hearing on February 11. Co February 6, Kornreich responded to
Kaminsky's letter, contradicting Kaminsky's statement that he had been out
of town, asserting that there was no alternative to utilizing the services of
the Mediation Board, and dismissing Kaminsky's request for information about
the dispute with the remark that it was "needless to state what our controversy
involves." On February 11, John T. McCormack, the Union's president, wrote
to Kaminsky, saying that he was complying with Kaminsky's insistence that
the nature of the dispute be reduced to writing, and that it involved wages
and paid holidays. The arbitration proceeding, set for that day, was postponed.
During the next several weeks there do not appear to have been further
'written communications. On March 15, 4 clays before the discharge of the
complainants, Kornreich wrote to the Mediation Board that he had "gotten
'together" with Kaminsky that day and asked that the Union's earlier "notice"
-to the Mediation Board be disregarded. On March 18, a representative of that
Board telephoned Kornreich, who advised that he had intended the letter to
be a request for an adjournment in the arbitration proceeding because the Union
and the Company were endeavoring to adjust their differences. In the mean-
time, on the preceding day, the "petition" which had been discussed by Kaminsky
and Shop Steward Orr was circulated among the employees for their signatures.
It was hand-written by Orr and read : "The men of Carlyle Rubber Company
.no longer want the AFL, Local 1146." On March 19, the day of the discharges,
the document was handed to Kaminsky by Orr, but Kaminsky brushed it aside
with the remark that the men were aware that he had "lost a case" with the
.Union, and that he did not care "to have anything to do with it."'
On March 19, at the close of the workweek, Kaminsky called the men together
and announced that he was discharging them. Kaminsky's remarks in making
the discharges are a principal issue, and my findings are based upon the testi-
mony of the four complainants and two employees who were reinstated. Orr tes-
tified that Kaminsky said that the Union had "won the case," and that he was
sorry but the Union had directed him to discharge the men because they were de-
linquent in their dues. White testified that Kaminsky said that he had lost a case
against the Union and that he was sorry to discharge the men. Carrol testi-
fied that Kaminsky said that "a referee decided with the union" and that the
Union had demanded that he make the discharges. Cotton testified that
Kaminsky did not on that occasion specifically refer to having lost "a case" with
the Union but did say that he was sorry to have to discharge them "upon orders
° This finding is based upon the testimony of Orr. On the other hand, Kaminsky acknowl-
edged that Orr brought the document to him on March 19, but testified that he had
decided to discharge the men for lawful reasons, as set out below, and that he "threw"
the document to Orr with the statement, "I am not interested." In opposing Orr's version,
the Company argues that Kaminsky would not have waited until March 19 to inform
Orr that it had "lost a case"during the preceding December when the representative of
the Mediation Board advised that the contract had been renewed. The Company argues
also that the General Counsel's evidence about the document should be rejected because
it is based upon the theory that "Kaminsky asked the men to get together to help him
fight the Union . . . AFTER HE LOST THE CASE." The facts, however, are that
Kaminsky first discussed the preparation of a "petition" with Orr during November,
before the matter of renewal of the contract was taken to the Mediation Board, and that
the advice of that Board's representative did not settle the differences between the Company
and the Union, as the above-described communications establish.
CARLYLE RUBBER CO., INC. 401
from the Union." Their testimony is supported in substantial part by that of
two employees who were discharged also, but who were reinstated and were
working for the Company at the time of the hearing. They are not complain-
ants. Thus, Randolph Rochelle and Charles Holcombe, rebuttal witnesses,
both testified that Kaminsky said to the men that he was sorry but the Union
had directed him to discharge them. These witnesses impressed me as honestly
endeavoring to relate ' the truth concerning Kaminsky' s remarks . I find that
Kaminsky told the men that he was discharging them upon the demand of the
Union. The employees accepted their discharges without argument and left. the
plant.10
There were 10 or 11 employees in the bargaining unit at the time of the dis-
charges. Although Kaminsky said to the men that he was discharging all of
them, 2 were not discharged. They are Henry Harris, a cousin of Kaminsky,
and James Smith, who had been in the Company's employ for nearly 30 years.
Perhaps one other employee, not named, was ill, and it does not appear whether
he returned to work at any time. Of the remaining 8 employees, all of whom
are named in the charges mentioned below, 3 were reinstated. They are Rochelle
and Holcombe, above mentioned, and George Dixon. .
On March 22, the following Monday, several of the employees went to the
Union's offices to pay their delinquent dues. They spoke with the bookkeeper,
who is not identified by name, and she informed them that she had been in-
structed not to accept dues payments from employees of the Company. On
March 25, a group of employees, consisting of the three who later were reinstated
and some or all of the complainants, called at the Board' s offices and filed
charges against both the Company and the Union. At uncertain times, but
apparently before the end of the month, a number of the employees again called
at the Union's offices. They talked with a representative of the Union, iden-
tified as one Hurowitz or, the manager, Kornreich, who told them that several
employees would be reinstated and permitted to pay dues, but who declined to
discuss the matter because "some of the men could not be trusted." When
Complainant White asserted that he should be permitted to pay dues because
he understood that the Union had accepted delinquent payments from the two
employees who were not discharged, Harris and Smith, the Union's representa-
tive still refused to discuss the matter. Later the representative told White
that some of the men would be reinstated if the charges were withdrawn.
On March 30, Rochelle and Holcombe returned to work after receiving tele-
grams from the Company that they were to be reinstated. A like telegram was
sent to Dixon, but the date of his return to work is not established in the record.
10 Approximately eight employees heard Kaminsky ' s remarks , excluding the following per-
sons who were identified by the General Counsel's witnesses as having been present also:
Kaminsky ' s brother , Elliott ; Kaminsky 's brother -in-law , one Moore ; the general manager,
Hayden Visscher ; and a foreman, Leon Minsky. Only Kaminsky and Minsky were wit-
nesses for the Company. They testified that the complainants were incompetent workers
and that on March 19 Kaminsky decided to discharge all employees and to rehire those
of ability. They testified further that Kaminsky said merely that he was disgusted with
the work of the men, with the Union and "everything else," and that he was discharging
them all. Kaminsky 's explanation for having selected the method of group discharge as
a means of discharging only the four complainants and Frank McKesseling , who is also
named in the charges but whose whereabouts are unknown to the General Counsel , is that he
wished to save himself the embarrassment of having to tell each of five dischargees the
reasons why he was being discharged and other employees retained . Kaminsky's version
of his remarks must be rejected . It does not bear the ring of truth when one considers
the entire sequence of events herein. See footnote 15.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By April 12 , replacements had been hired for the four complainants , and the
working force had returned to approximately its normal size." Kaminsky testi'-
fled on direct examination that the new employees were not hired ' through,.the.
Union, that they were not told to go to the'Union and pay dues, and that'he made
no inquiry to ascertain if they became members. On cross-examination , however,
Kaminsky testified that he was "not certain" whether he sent them to the Union,
that he believed that he -told them of:the contract with the Union,` and that
he believed that he told a Field Examiner for the Board who investigated these
cases that "We simply asked the men to go up to the union, and when he comes
back we put him to work. We don't even ask to see his work permit." I find
that Kaminsky did refer the new employees to the Union in accordance with
the provisions of the contract quoted above.
On April 16, Kaminsky left New York for a trip to Europe. On April 27,
Kornreich, for, the Union, wrote to the Mediation Board, saying that "every-
thing has worked out well", with the Company and that the Mediation Board
should "drop our proceedings." Kaminsky returned to New York during July',
and prior to the end of that month the Union commenced another proceeding
against the Company before the Mediation Board. Kaminsky's testimony con-
cerning the April 27 letter and earlier communications. is set out below.
On July 28, the Mediation Board wrote to the Company and the Union that
it had been requested to name an arbitrator to determine a dispute and that a
hearing would be held on August 5. In July 29, Visscher, the Company's general
manager, responded and asked that the arbitration be postponed until'August
6 at the request of Kaminsky. On the next day the postponement was granted.
On August 2, Visscher, having been notified that his request for a postponement
had been acted upon favorably, wrote to the Mediation Board that the Com-
pany was unaware of any dispute with the Union and asked "what the arbitra-
tion concerns." On August 3, the Mediation Board advised that the Union
had charged the Company with a refusal to discharge employees who were not
members in good standing of the Union. On the next day, the arbitration hear-
ing again was postponed. On August 13, the hearing was held, and the Com-
pany contended that it would be an unfair labor practice for it to comply with the
Union's demand, while the Union asserted the contrary. On August 24, the
arbitrator rendered his decision in favor of the Company. On November.1, 1948,
upon the expiration of the contract, the relationship between the Company and
the Union ceased.
C. Conclusions
1. The Company
We have seen that the contract between the Company and the Union con-
tained extensive union security provisions. During the original term of the
contract the Act was amended, and the contract was renewed after the effective
date of the amendatory legislation. There appears to be no dispute between
the General Counsel and the Company that the union security provisions of the
"Counsel stipulated that the replacements had been hired by April 12, 1948, but a
typographical error in the transcript fixes the date as 1949. The fact that the error
is a typographical one is shown by the following : First , at the time of the stipulation
there was discussion as to whether the date should be April 11 or 12. April 11, 1948,
was a Sunday , and when this point became clear , the date was fixed as April 12. Second,
both the direct and cross -examination of Kaminsky concerning the replacements dealt
with the contract then existing between the Company and the Union , which was terminated
in late 1948 . The typographical error is hereby ordered to be corrected in the transcript.
CARLYLE RUBBE1h"C0.^,-.TNC.' 403
contract, as renewed, were illegal. This is so because of the failure to satisfy
the requirements-in the proviso to Section 8 (a) (3) of the Act, both as to the
conduct of a union-shop election and the permissible limits of union security
provisions.'? Nor does the advice by the representative of the Mediation Board
to the Company during December 1947, that the contract had been renewed by
virtue of the automatic renewal clause, have a binding effect upon the Board
or constitute a defense for the Company " The main issue is whether the Com-
pany, in discharging the complainants on March 19, 1948, complied with the de-
mands of the Union that they be discharged for nonpayment of dues or, on the
contrary, was motivated by wholly lawful reasons.
The Company acknowledges that there were repeated demands by the Union
that, delinquent members be discharged. It asserts that it rejected each-and
every demand. In its brief, the Company refers to an instance during the
initial year of the contract when it refused to discharge an employee named-
Perry for nonpayment of dues, and it argues :
The record is completely barren of any testimony which even suggests that
Carlyle at'any time required, ordered, suggested or demanded -that any of
its workers pay dues to the Union. This fact is of paramount importance
in that it definitely establishes Carlyle's lack of interest in seeing to it
that its workers remained in good standing in the Union.
This statement is hardly accurate when one considers that (1) the contract
itself required the employees to maintain good standing in the Union , an essential
of which was the payment of dues; '(2) the mere existence of the union security
provisions after the renewal date of the contract, regardless of their enforce-
ment, constitute a violation of Section 8 (a) (1) of the Act ; " and (3) Kaminsky
referred new employees to the Union in accordance with those unlawful
provisions.
The General Counsel calls attention to the letter of March 15 from the Union
to the Mediation Board, 4 days before the discharges, in which Kornreich wrote
that he had "gotten together" on that day with Kaminsky and that the Media-
tion Board should disregard the Union's earlier notice. The General Counsel
also calls attention to Kornreich's advice of March 18 to the Mediation Board
that the Union and the Company were endeavoring to adjust their differences,.
and to the letter of April 27 from Kornreich to the Mediation Board in which
12 Julius Resnick, Inc ., 86 NLRB 315 ; Salant d Salant, Incorporated, 87 NLRB 215.
The proviso to Section 8 (a) (3) reads , in part, as follows:
. . . nothing in this Act, or in any other statute of the United States, shall preclude
an employer from making an agreement with a labor organization . . . . to require
as a condition of employment membership therein on or after the thirtieth day
following the beginning of such employment or the effective date of such agreement,
whichever is the later, . . . (ii) if, following the most recent election held as pro-
vided in section 9 (e) the Board shall have certified that at least a majority of the
employees eligible to vote in such election have voted to authorize such labor organ=
Ization to make such an agreement... .
18 The Company asserts that it was "ordered" by the Mediation Board "to abide by
the agreement even though it contained a Union Shop clause which, by reason of the
Labor Management Relations Act of 1947, was of doubtful validity." The fact, however,
is that the proceeding before the Mediation Board in December 1947 was an informal
mediation proceeding only, that its representative's advice may not appropriately be
considered an' order, and that it passed uron the validity of the union security clauses
in an arbitration proceeding :=.t a later date. In any event, assuming the accuracy of the
Company's assertion, it can have no controlling effect here. Combustion Engineering
Company, Inc., et al., 86 NLRB 1264, and cases cited therein.
14 Julius Resnick , Inc., footnote 12.
404 'DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
he said that "everything has worked out we4l" and asked that the proceeding
be terminated. The General Counsel contends that Kornreich's references were
to the demands of the Union for the discharge of employees. The Company
disputes this contention, and at this point we must review the correspondence
of early 1948 and consider Kaminsky's testimony concerning it.
On February 3, the Union wrote to Kaminsky and threatened to take a dispute
to the Mediation Board. On February 4, Kaminsky replied, asking the nature
of the dispute. The Company asserts that these letters were preliminary to the
one of February 11 from the Union in which the dispute was said to involve
wages and paid holidays. But on February 5 the Mediation Board wrote to the
Company and the Union fixing February 11 as the date for an arbitration pro-
ceeding which was never held and which involved, according to Kaminsky, the
Union's demand that he institute a checkoff of dues and that he discharge em-
ployees who were not members in good standing of the Union. On February 6,
the Union responded to the Company's letter of 2 days earlier and refused "to
state what our controversy involves." On February 11, however, the Union again
wrote to Kaminsky, this time saying that the dispute involved wages and paid
holidays.. The next communication is that of March 15 from Kornreich to the
Mediation Board in which he said that he and Kaminsky had "gotten together"
that day. But they had not "gotten together" on the asserted issues of wages
and paid holidays. Kaminsky denied that he had talked with Kornreich that
day, and he testified that he refused the wage and holiday demand "all the way
through." Nevertheless, according to Kaminsky, the statement of Kornreich
to the Mediation Board that he had "gotten together" with Kaminsky referred
to the alleged dispute over wages and holidays, and not to the matter of dis-
charging delinquent members which had been submitted to the Mediation Board.
I am unable to credit Kaminsky's testimony. In the light of all the facts in this
case, it does not furnish a reasonable explanation for Kornreich's letter of
March 15. Moreover, since Kaminsky never met the alleged wage and holiday
demand, that matter could hardly have been the subject of Kornreich's next
letter, that of April 27, to the Mediation Board, in which Kornreich said that
"everything has worked out well." Kaminsky testified that he did not know
to what matter Kornreich referred in that letter. I find that Kornreich's letters
of March 15 and April 27 to the Mediation Board referred to the Union's demand
for the discharge of employees under the illegal union security provisions of the
contract. This is so because (1) the Union had repeatedly demanded the dis-
charge of employees not in good standing; (2) the arbitration proceeding ini-
tiated by the Union during February involved this demand, as Kaminsky
acknowledged; (3) Kornreich's purported demand for improved wages and work-
ing conditions was never met, but his demand for the discharge of employees
was met on March 19 with Kaminsky's statement to them that he was acting at
the insistence of the Union; and (4) Kaminsky referred the new employees to
the Union pursuant to the union security provisions of the contract.16
1s The Company argues that it would not have discharged the employees at the demand
of the Union, and so informed them, because Kaminsky "did not believe that he had the
right to discharge workers for nonpayment of dues after the passage of the Labor Manage-
ment Relations Act of 1947." As proof, it argues that Kaminsky "took the issue to the
New York State Board when pressed by the Union ." The fact, however , by Kaminsky's
own testimony, is that the arbitration proceeding which was set for February 11, and
which never reached a decision, involved the issue. It was the later proceeding, which
commenced in July 1948, after the charges were filed in this case, which resulted in a
decision by the arbitrator.
CARLYLE RUBBER CO., INC. 405
The record contains considerable, testimony by the Company that the complain-
ants were inefficient workers. They were laborers with only unskilled or semi-
skilled duties. According to Kaminsky, they were inefficient during 1945 and
earlier. According to Foreman Minsky, who supervised the men after 1945,
they were inefficient from early February 1946 until their discharges in 1948.
Although Minsky testified that several other employees were discharged for in-
efficiency during the initial year of the contract with the Union, the Company
asserts that the complainants were not discharged prior to July, 1947 because
the wartime labor shortage existed, that they were not discharged when the
shortage ended then because of the dues delinquency of employees and the
Union's demand for a checkoff, as well as the complainants' personal economic
problems, and that they were not discharged in December 1947, the month follow-
ing the renewal of the contract, because the Company wanted to "wait until the
union trouble was over and see what happened with the union." Kaminsky
testified, however, that with the continued inefficiency of the men, coupled with
a curtailment of business during.early 1948, his "patience was exhausted" and
that lie decided to discharge the four complainants and McKesseling, as well as
the three competent employees, Holcombe, Rochelle, and Dixon, and to reinstate
the latter three. On the other hand, there is evidence by the General Counsel
that the complainants were not inefficient, that they were not criticized for their
alleged inefficiency, and that the curtailment in the Company's business during
early 1948 was so slight that the Company hired replacements for all the com-
plainants within about 3 weeks after the discharges. It is unnecessary to detail
the Company's evidence respecting the alleged inefficiency, on the one hand, and
that of the General Counsel on the other. It suffices to say that the Company's
evidence, if believed, might establish that the Company had what it. considered
good cause to discharge the complainants. "It does not necessarily follow,
however, from the fact that the Respondent may have had such cause, that the
discharges were for such cause." 19 I am convinced that the real cause was the
Company's compliance with the Union's demand that the employees be dis-
charged under the unlawful union security provisions of the contract.17
I find that the Company, by its renewal and continuance of the contract with
the Union on and after November 1, 1947,18 and by its discharge of the com-
plainants on March 19, 1948, has discriminated in regard to the hire and tenure
of employment of employees, thereby encouraging membership in a labor or-
ganization. I find further that the Company by the discharges and by its re-
newal and continuance of the contract with the Union, has interfered with, re-
strained, and coerced, and is interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.18
19 Ray Smith Transport Company, 89 NLRB 1045.
17 The Company contends that Rochelle, Holcombe, and Dixon were reinstated without
the payment of their delinquent dues. There is no evidence to support this contention.
The Company contends also that after their reinstatement, Kaminsky did not request them
to obtain and maintain good standing in the Union. The fact is that Kaminsky so testified,
and that Rochelle and Holcombe, who were rebuttal witnesses, did not testify on the
point. These two employees, however, went with others to the union offices to pay their
dues at the time when they all were told that payment would be accepted only from the
employees who later would be reinstated. What, if anything, Rochelle, Holcombe, and
Dixon did to achieve reinstatement is not an essential element in the General Counsel's.
case.
11 The Great Atlantic and Pacific Tea Company, 81 NLRB 1052.
9 Julius Resnick, Inc., footnote 12 ; Salan.t J Salant, Incorporated, footnote 12 ; Clara-
Val Packing Company, 87 NLRB 703; Lloyd A. Fry Roofing Company, et al., 89 NLRB
854; Pacific Maritime Association , et al., 89 NLRB 894.
4Q6 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
2. The Union
Section 8 (b) (2) of the Act, which the Union is alleged to have violated, pro-
vides that it shall be an unfair labor practice for a labor organization or its
agents "to cause or attempt to cause an employer to discriminate against an
employee in violation of" Section 8 (a) (3). It has been found that the Com-
pany discriminated against the complainants in violation of the latter Section,
at the repeated demand of the Union. The violation of Section 8 (b) (2) is
manifest. Moreover, the violation exists wholly aside from the Company's vio-
lation of Section 8 (a) (3). This is so because' Section 8 (b) (2) proscribes
the "attempt to cause" an employer to unlawfully discriminate against an em-
ployee, as well as the actual achievement of the discrimination,20 and here the
Company asserted in its answer and also presented testimony that on numerous
occasions, the Union demanded that the Company discharge employees pursuant
to the unlawful union security provisions of the contract. Accordingly, I find
that the Union has caused, and attempted to cause, the Company, an employer,
to discriminate against employees in violation of Section 8 (a) (3), and thereby
engaged in and is engaging in unfair labor practices proscribed by Section 8 (b)
(2) of the Act, and thereby also restrained and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.21 'I find further that the
Union, by its renewal and continuance of. and its insistence that the Company
renew and continue, their contract during and after November 1947, independently
violated Section 8 (b) (2),22 but not Section 8 (b) (1) (A) .m
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 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 ob-
structing 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 that they
take certain affirmative action designed to effectuate the policies of the Act.
I have found that both Respondents were responsible for the discrimination
against Orr, White, Cotton, and Carrol. At the hearing, counsel stipulated that
the complainants, if asked, would testify that they did not desire reinstatement
to their former positions. Accordingly, I shall not recommend that the Com-
pany offer them reinstatement. I shall, however, recommend that both. Re-
spondents, jointly and severally, make the complainants whole for any losses of
pay they may have suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to the amount which he
normally would have earned as wages from the date of the discrimination,
March 19, 1948, to the date upon which the hearing herein commenced, November
20 H. Milton Newman, 85 NLRB 725.
21 Clara-Val Packing Company, footnote 19; Lloyd A. Fry Roofing Company, footnote 19.
22 The (Treat Atlantic and Pacific Tea Company, footnote 18; National Maritime Union,
78 NLRB 971.
23 International Typographical Union, 86 NLRB 951 ; International Union, United Mine
Workers of America, 83 NLRB 916.
CARLYLE RUBBER CO., INC. 407
22, 1949," less his net earnings Y6 during said period. I shall not attempt to
adjust between the Respondents the amount of back pay for which they are
liable, but shall recommend that they jointly and severally. make the com-
plainants whole for any losses the complainants have suffered by reason of the
discrimination.
Since the contract between the Respondents is no longer in existence, having
been terminated on November 1, 1948, I shall not recommend that they cease
and desist from giving effect thereto. Moreover, since there is no allegation that
the illegal union security provisions of the contract constituted support to the
Union in violation of Section 8 (a) (2), I shall not recommend that the Company
withhold recognition from the Union unless and until the Union is certified by
the Board 26
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following: i
CONCLUSIONS OF LAW
1. The operations of Carlyle Rubber Co., Inc. constitute trade, traffic, and
commerce among the several States, within the meaning of Section 2 (6) and
(7) of the Act.
2. Plumbing, Hardware, Paint, Electrical Supplies & Auto Accessories Union,
Local 1146, R. C. I. A., AFL, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
8•. By discriminating in regard to the hire and tenure of employment of em-
ployees, thereby encouraging membership in a labor organization, Carlyle
Rubber Co., Inc. has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) 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, Carlyle Rubber Co., Inc. has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. By causing, and attempting to cause; Carlyle Rubber Co., Inc. to discrimi-
nate against employees in violation of Section 8 (a) (3) of the Act, Plumbing,
Hardware, Paint, Electrical Supplies & Auto Accessories Union, Local 1146,
R. C. I. A., AFL, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, Plumbing, Hardware, Paint, Electrical Supplies
& Auto Accessories Union, Local 1146, R. C. I. A., AFL, has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. Plumbing, Hardware, Paint, Electrical Supplies & Auto Accessories Union,
Local 1146, R. C. I:.A., AFL, has not engaged in unfair labor practices within
'the meaning of Section 8 (b) (1) (A) of the Act by its renewal and continuance
of, and its insistence that Carlyle Rubber Co., Inc. renew and continue, their
contract during and after November 1947.
[Recommended Order omitted from publication in this volume.]
24 Stewart Warner Corporation, 55 NLRB 593, 612.
21 See Crossett Lumber Company, 8 NLRB 440.
26 Pacific Maritime Association, footnote 19.