District Lodge 94, Int'l Assn. of Machinists, Etc.

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1265 (N.L.R.B. 1960)

DISTRICT LODGE 94, INT'L ASSN . OF MACHINISTS , ETC. 1265
District Lodge 94, International Association of Machinists and
its Affiliate Local Lodges 1186 and 1484 , AFL-CIO and Irvin
Karstensen and Consolidated Rock Products Company, Party
to the Contract and Rock Products and Ready Mixed Concrete
Negotiating Committee , For and in Behalf of Other Signa-
tories to the Contract : Arrow Rock Company; Blue Diamond
Corporation ; Chandler's Palos Verdes Sand & Gravel Co.;
Graham Brothers, Inc.; Livingston Rock & Gravel Co. Inc.;
Owl Rock Products Co.; Transit Mixed Concrete Co.; Azusa
Rock & Sand Company; California Materials Company;
Granite Materials Co.; Manning Bros. Rock & Sand Co.;
Edward Sidebotham & Son, Inc., and Sully-Miller Contract-
ing Company, Parties to the Contract . Case No. 21-CB-1069.
March 23, 1960
DECISION AND ORDER
On April 3, 1959, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondents 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 Inter-
mediate Report attached hereto. Thereafter, the General Counsel
and the Respondents filed exceptions to the Intermediate Report and
supporting briefs. The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the exceptions,
modifications, and additions herein noted.
1. The complaint herein alleges that the Respondents caused and
attempted to cause Consolidated Rock Products Company and other
employers signatory to a multiemployer contract to discriminate
against former employees applying for employment as new employees
by the terms of article I(b) of said contract. As more fully set forth
in the Intermediate Report article I(a) of the parties' 1956 agreement
provided that employees shall after the prescribed 30-day period
become members of the Union in good standing; article I(b), supple-
menting article I(a), specified in part, that an employee shall be dis-
charged for the failure to comply with article I(a), providing mem-
bership was not denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and membership fees
uniformly required. Article I(b), however, further provided that
126 NLRB No. 148.
554461-60-vol. 126-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"such an employee shall not be reemployed by the Employer until
notified by the Union that the employee has paid any such initiation
fees or dues then delinquent, or unless such employee presents a work
clearance from the Union to the Employer...." It is the latter pro-
vision which the General Counsel contends makes article I(b) unlaw-
ful on its face since it could conceivably be applied in cases where a
discharged employee sought employment as a new employee. The
Trial Examiner did not pass on the validity of article I (b), although
the issue was litigated at the hearing.
We do not agree with the General Counsel's contention. In our
opinion the language on its face does not lend itself to the construction
urged by the General Counsel. In the context of article I, the union
security clause, article I(b) constitutes an exercise of the Union's
prerogative to refuse to agree to the reinstatement of an employee to
his former position except on a payment of the delinquent dues which
he was obligated to pay in the first instance in order to avoid the
penalty of a lawful discharge under Section 8(a) (3). Accordingly,
we find that article I(b) is valid in its entirety.
2. We agree with the Trial Examiner that Respondents District
Lodge 94 and Local 1186 caused and attempted to cause Consolidated
Rock Products Company to discriminate against Irvin Karstensen
in violation of Section 8(a) (3) thereby violating Section 8(b) (1) (A)
and (2) of the Act. Like the Trial Examiner we are of the opinion
that the Respondents unlawfully conditioned Karstensen's reemploy-
ment with Consolidated on his prior reinstatement to membership in
good standing in Respondent Local 1186. As more fully set forth in
the Intermediate Report and reflected in the record, Respondents
District 94 and Local 1186, after Karstensen's discharge for failure
to pay his periodic dues, informed Karstensen that he would not be
cleared for reemployment with Consolidated until he had worked
for 30 days for another employer under contract with Respondents'
organization and had thereafter been reinstated to membership in
good standing in Local 1186. The Respondents thereafter refused
all offers of Karstensen to pay his delinquent dues and any reinstate-
ment fee required for restoration to membership in good standing,
although the Respondents knew that Consolidated was willing and
anxious to reemploy Karstensen if the Respondents gave the necessary
clearance as provided in their agreement. In the circumstances of the
case, the Respondents' insistence on Karstensen's prior reinstatement
to membership in good standing in the Union as a condition of em-
ployment with Consolidated was clearly discriminatory and a viola-
tion of the rights guaranteed to employees under the Act.'
1 The Radio Officers' Union of the Commercial Telegraphers Union , AFL (A. H. Bull
Steamship Company ) v. N.L R.B., 347 U.S 17.
DISTRICT LODGE 94, INT'L ASSN. OF MACHINISTS, ETC. 1267
The Respondents contend, however, that they were justified in refus-
ing to clear Karstensen for reemployment after his lawful discharge
under the terms of the union-security agreement. They argue that to
have reinstated Karstensen would have negated his lawful discharge.
In that connection they rely on the Board's decision in Standard
Brands? In Standard Brands, the Board found that, regardless of
the precise language used, requests for work which followed within
a month upon the employees' discharge under a valid union-security
clause were, under the circumstances of the case, so clearly related to
the turmoil resulting from the discharges that they could not be viewed
as applications for new employment but rather were more in the
nature of requests for reconsideration of the antecedent discharges.
In the instant case there is no antecedent "turmoil" to which Kar-
stensen's request for reemployment could have related so as to amount
to a request for a reconsideration of the merits of the discharge. As
the Trial Examiner observed, in rejecting the Respondents' conten-
tions, Karstensen did not challenge the validity of the discharge nor
did he specifically ask for reconsideration of his discharge. Moreover,
unlike the situation in Standard Brands, as we interpret article I(b),
the Respondents specifically obligated themselves to notify Consoli-
dated of Karstensen's tender of delinquent dues and hence of his
eligibility for reemployment .3 The Respondents' refusal to notify
Consolidated and thus clear Karstensen for reemployment was for
reasons other than his failure to pay his delinquent dues and was
discriminatory. Accordingly, we find in view of the foregoing and
on the record as a whole that Respondents District 94 and Local 1186
violated Section 8(b) (1) (A) and (2) of the Act by attempting to
and causing Consolidated to discriminate against Karstensen in viola-
tion of the Act. We also find that the Respondents further violated
Section 8(b) (1) (A) by advising Karstensen that he could not be
reemployed by Consolidated until he had first acquired membership
in good standing in Local 1186.
3. We find in agreement with the Trial Examiner, and for the
reasons set forth in the Intermediate Report, that the Respondents
violated Section 8(b) (1) (A) and (2) of the Act by maintaining in
effect article I(c) of the 1956 agreement which expressly gives pref-
erence in overtime work assignments to members of the Respondents.
However, in the circumstances of this case, we do not adopt the Trial
Examiner's further finding that the entire union-security clause of
the said agreement, article I thereof, is invalid by reason of the in-
validity of paragraph (c) thereof.
2 Standard Brands, Incorporated, 97 NLRB 737.
5 We agree with the Trial Examiner that even if Karstensen did not make an actual
tender of the dues and reinstatement fee, his failure to do so was excused because it was
apparent that if he had made such tender it would have been refused.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We have found in agreement with the Trial Examiner that the
Respondents violated the Act by maintaining in effect the unlawful
provisions of article I(c) of the 1956 agreement. We have also found,
in agreement with the Trial Examiner, that the Respondents violated
the Act by attempting to and causing Consolidated to discriminate
against Karstensen in violation of Section 8(a) (3) by conditioning
his reemployment with Consolidated on his prior employment with
another employer under contract with the Respondent and subsequent
reinstatement as a member in good standing in Local 1186. To remedy
the unfair labor practices we shall order said Respondents District
Lodge 94 and Local 1186 to cease and desist from engaging in such
unlawful conduct.'
However, contrary to the Trial Examiner, we are of the opinion
that Karstensen was not seeking reemployment as a new employee,
and that upon the tender of his delinquent dues and the reinstatement
fee he was entitled to reinstatement to his former position. Accord-
ingly, we shall order Respondents District 94 and Local 1186 to
notify Consolidated and Irvin Karstensen that the said Respondents
have withdrawn their objections to his reinstatement to the position
he formerly held, without prejudice to his seniority or other rights
and privileges. The record shows that Karstensen was reemployed as
a new employee in November 1958. As we find, however, that Kars-
tensen is entitled to reinstatement to his former position, we shall
direct the Respondents to reimburse Karstensen for any loss of pay
suffered by him as a result of the Respondents' discrimination against
him by paying to him a sum of money equal to the amount he would
have earned as wages from April 7, 1958, the date of the discrimina-
tion, to a date 5 days after the date the Respondents notify the Com-
pany and Karstensen as set forth above, less his net earnings for the
period. Loss of pay shall be computed in accordance with the formula
used by the Board in F. W. Woolworth Company, 90 NLRB 289.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents District Lodge
94, International Association of Machinists, AFL-CIO; Local Lodge
1186, International Association of Machinists, AFL-CIO ; and Local
Lodge 1484, International Association of Machinists, AFL-CIO, their
officers, representatives, agents, successors and assigns, shall : 5
4 In view of the fact that the record fails to disclose any evidence showing that Local
1484 engaged in any conduct which contributed to the discrimination against Karstensen
we do not adopt the Trial Examiner's recommendation that Local 1484 be required jointly
and severally to make whole Karstensen for any loss of pay he may have suffered as a
result of the discrimination against him, nor do we adopt any other of his recommenda-
tions relating to such discrimination
5 The provision of this Order relating to the discrimination against Karstensen shall
not be taken to apply to Respondent Local 1484.
DISTRICT LODGE 94, INT'L ASSN. OF MACHINISTS, ETC. 1269
1. Cease and desist from :
(a) Maintaining in effect any agreement with Consolidated Rock
Products Company, or with any other employer over whom the Board
would assert jurisdiction, which requires the said employer to give
preference in overtime work assignments to members of the
Respondents.
(b) Causing or attempting to cause Consolidated Rock Products
Company to refuse to reemploy Irvin Karstensen or any other em-
ployee because such employee has not been reinstated to membership
in good standing in Respondents' organization through employment
with another employer under contract with the Respondents, or in
any other manner discriminating against said Karstensen or any
other employee in violation of Section 8(a) (3) of the Act.
(c) Informing Karstensen or any other employee that the Re-
spondents would not clear him for reemployment with said Company
unless he was first reinstated to membership in good standing in
Respondents' organization through employment with another em-
ployer under contract with the Respondents.
(d) In any like or related manner, restraining or coercing em-
ployees 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 agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally make whole Irvin Karstensen for any
loss of pay he may have suffered by reason of discrimination against
him in the manner set forth in the section of the Intermediate Report
entitled "The Remedy" as modified by the remedy section of the
Board's Decision and Order herein.
(b) Notify Irvin Karstensen and Consolidated Rock Products
Company, in writing, that the Respondents have no objection to the
reinstatement of Irvin Karstensen by said Company to his former
position without regard to his membership or nonmembership in the
Respondents' labor organization, or any other labor organization,
and without prejudice to his seniority or other rights and privileges.
Such notification shall contain a request that the Company offer Irvin
Karstensen reemployment as provided in "The Remedy" section of
this Decision and Order.
(c) Post at Respondents' respective business offices and meeting
halls copies of the notice attached hereto marked "Appendix." 9
6 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."
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by authorized
representatives of the Respondents, be posted by them immediately
upon receipt thereof and be maintained by them for a period of 60
consecutive days thereafter in conspicuous places including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix" for
posting by Consolidated Rock Products Company in places where
notices to employees are customarily posted, if said Company is willing
to do so. Copies of said notice, to be furnished by the Regional Di-
rector, shall, after being duly signed by authorized representatives
of the said Respondents, be forthwith returned to the Regional Direc-
tor for posting.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days of the date of this Order what steps they have
taken to comply herewith.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT LODGE 94, INTERNATIONAL
ASSOCATION OF MACHINISTS , AFL-CIO ; LOCAL LODGE 1186 , INTER-
NATIONAL ASSOCIATION OF MACHINISTS , AFL-CIO ; AND LOCAL
LODGE 1484 , INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-
CIO; AND TO ALL EMPLOYEES OF CONSOLIDATED ROCK PRODUCTS
COMPANY
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 maintain in effect any agreement with Consol-
idated Rock Products Company, or with any other employer over
whom the Board would assert jurisdiction, which requires the said
employer to give preference in overtime work assignments to our
members.
WE WILL NOT cause or attempt to cause Consolidated Rock
Products Company to refuse to reemploy Irvin Karstensen or
any other employee because such employee has not been reinstated
to membership in good standing in our organization, through
employment with another employer under contract with us, or in
any other manner discriminate against said Karstensen or any
other employee in violation of Section 8(a) (3) of the Act.
DISTRICT LODGE 94, INT'L ASSN. OF MACHINISTS, ETC. 1271
WE WILL NOT inform said Karstensen or any other employee
that we will not clear him for reemployment with said Company
unless he is first reinstated to membership in good standing in
our organization through employment with another employer
under contract with us.
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 affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8 (a) (3)
of the Act as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL jointly and severally make whole said Karstensen for
any loss of pay he may have suffered by reason of the discrimina-
tion against him.
WE WILL notify Consolidated Rock Products Company and
Irvin Karstensen, in writing, that we have no objection to the
reinstatement of Irvin Karstensen by said Company to his former
position without regard to his membership or nonmembership in
our organization or any other labor organization, and without
prejudice to his seniority or other rights and privileges.
WE WILL request said Company to offer Irvin Karstensen re-
employment as provided above.
The provisions of this notice relating to the discrimination against
Karstensen shall not be taken to apply to Local 1484.
DISTRICT LODGE 94, INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title),
LOCAL LODGE 1186, INTERNATIONAL Asso-
CIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL LODGE 1484, INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL-CIO,
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.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on April 10 and August 8,
1958,1 respectively, by Irvin Karstensen, the General Counsel of the National Labor
Relations Board, herein called, respectively, the General Counsel2 and the Board,
by the Regional Director for the Twenty-first Region (Los Angeles, California),
issued a complaint, dated December 11, alleging therein that District Lodge 94,
International Association of Machinists and its affiliated Local Lodges 1186 and
1484, AFL-CIO, herein jointly called Respondents and individually as Respondent
District 94, Respondent Local 1186, and Respondent Local 1484, have engaged in
and are engaging in unfair labor practices affecting commerce within the meaning
of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charges and complaint, together with notice of hearing thereon, were
duly served upon each Respondent, upon Consolidated Rock Products Company,
herein called Consolidated, a signatory to a certain multiemployer collective-
bargaining contract, upon Rock Products and Ready Mixed Concrete Negotiating
Committee, herein called the Negotiating Committee, and upon each of the other 13
employer-members signatories to the aforesaid certain industrywide, or multiem-
ployer, agreement.
Specifically, the complaint alleged that (1) during all times material there was in
full force and effect a collective-bargaining contract between Respondents and the
multiemployer group here involved which contained, among other things, a union-
security clause requiring membership in good standing in either Respondent Local
1186 or in Respondent Local 1484 as a condition of continuous employment with
any member of the aforementioned employer group; (2) on or about April 3, two
named officials of Respondent District 94 caused Consolidated to terminate Karsten-
sen's employment on the representation that he was no longer a member in good
standing because he was then in arrears in dues for more than 3 months in Respond-
ent Local 1186; (3) despite the fact that on April 4 Karstensen tendered the dues in
arrears to Respondent District 94 and on April 7, tendered to Respondent District
94 and also to Respondent Local 1186 the arrears and the required reinstatement
fee, Respondent District 94 and Respondent Local 1186 have, and each has, refused
to notify Consolidated that Karstensen had so tendered the said arrears and rein-
statement fees; (4) Respondent District 94 and Respondent Local 1186 have, and
each has, since April 3, refused to clear Karstensen for employment although Con-
solidated had requested such clearance thereby causing Consolidated to unlawfully
discriminate against Karstensen; and (5) by maintaining and enforcing certain
stated provisions of the aforementioned multiemployer agreement each Respondent
has caused the signatories thereto to unlawfully discriminate against former employees
and against nonmembers of Respondent Local 1186 and Respondent Local 1484.
Respondents duly filed a joint answer on December 19, denying the commission
of the unfair labor practices alleged.
Pursuant to due notice, a hearing was held on February 16, 1959, at Los Angeles,
California, before the duly designated Trial Examiner. The General Counsel and
the employer signatories to the multiemployer agreement were represented by counsel;
the Respondents by a Grand Lodge official. Full opportunity was afforded all
parties to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, and to file briefs on or before March 10, 1959. At the
conclusion of the taking of the evidence, counsel for the employer group and the
representative of Respondents each moved to dismiss paragraph 10 of the complaint.
Decisions thereon were reserved. The motions are disposed of in accordance with the
findings, conclusions, and recommendations hereinafter set forth. Briefs have been
received from the General Counsel, from counsel for the employer group, and from
Respondents, all of which have been carefully considered. Respondents also sub-
mitted proposed findings of fact which are disposed of in accordance with the findings,
conclusions , and recommendations hereinafter set forth.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
1 Unless otherwise noted, all dates refer to 1958.
2 This term specifically includes counsel for the General Counsel appearing at the
hearing.
DISTRICT LODGE 94, INT'L ASSN. OF MACHINISTS, ETC. 1273
FINDINGS of FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED
Consolidated, a California corporation, is engaged in the production and distribu-
tion of rock, sand, gravel, and ready-mixed concrete and is a supplier of building
material. During the 12-month period immediately preceding the issuance of the
complaint herein, Consolidated supplied to interstate railroads products valued in
excess of $50,000 and also sold to customers products valued in excess of $50,000,
who, in turn, annually ship goods to points located outside the State of California
valued in excess of $50,000.
Consolidated and the other employers here involved have conducted, during all
times material, their collective bargaining with Respondents through the aforemen-
tioned negotiating committee. During the 12-month period immediately preceding
the issuance of the complaint herein, the aggregate out-of-State purchases of said
employers amounted to more than $50,000.
Upon the above-admitted facts, the Trial Examiner finds that during all times
material the employers here involved were, and now are, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it will effectuate
the purposes of the Act for the Board to assert jurisdiction in these proceedings.
II. THE LABOR ORGANIZATIONS
District Lodge 94 , International Association of Machinists and its affiliated Local
Lodges 1186 and 1484 , AFL-CIO, are labor organizations admitting to membership
employees of the employers here involved.
HI. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
The facts in this case, which are not in serious dispute, may be summarized as
follows:
Under date of January 16, 1956, Respondent District 94 executed, for, and on
behalf of, Respondent Local 1186 and Respondent Local 1484, a collective-
bargaining agreement with the employers here involved containing, among others,
the following provisions:
ARTICLE I
(a) All employees covered by this Agreement shall on the 31st day after
employment, or thirty-one (31) days after the effective date of this Article,
whichever is latest, become and remain members of the Union in good standing.
(b) The Employer will terminate the employment of any employee covered
by this Agreement upon written demand of the Union, in the event that such
employee shall fail to comply with paragraph (a) of this Article, provided that
membership in the Union was available to the employee on the same terms
and conditions generally applicable to other members, and that membership
was not denied or terminated for reasons other than the failure of the em-
ployee to tender the periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership. Such employee shall not
be reemployed by the Employer until notified by the Union that the employee
has paid any such initiation fee or dues then delinquent, or unless such em-
ployee presents a work clearance from the Union to the Employer.
(c) It is understood and agreed that members of the signatory Union may be
used on repair and maintenance of plant and other heavy duty equipment
either in the field or in the shops when their ability and mechanical qualifica-
tions will permit and are required in the performance of such work. It is
further understood and agreed that nothing herein stated will preclude the
Employer from using other employees in the performance of any work covered
by this contract, so long as employee members of the Union are not displaced
from, and are given preference when overtime is involved on, the work which
the employee regularly performs.
The aforementioned agreement and a supplemental agreement between said parties,
dated November 1, 1957, were in full force and effect during all times material to
this proceeding.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Under date of April 2, Respondent District 94 wrote Consolidated as follows:
We are requesting the termination of I. Karstensen, who is not a member in
good standing of our organization, in accordance with Article I Section (b) of
the current labor agreement existing between us.
At the time of the aforesaid demand for Karstensen's termination Karstensen, who
had been for approximately 4 years a mechanic in Consolidated's employ and at all
times during said employment was in the collective-bargaining unit referred to in
the aforesaid bargaining contract and hence was covered by the union-security
clause contained therein, was, in fact, in arrears in the payment of his periodic dues
to Respondent Local 1186 for over 3 months and, therefore, in accordance with
the constitution of the International Association of Machinists and the bylaws of
the two locals here involved, he was not a member in good standing in Respondent
Local 1186.
On April 3, when Karstensen reported for work, his immediate superior, Fore-
man Thurlow Mason, informed him of the receipt of the aforementioned letter.
After advising Karstensen that he was being terminated because he was no longer a
member in good standing in Respondent Local 1186, Mason suggested that Karsten-
sen reinstate himself as a member in good standing in said organization and then
obtain therefrom a clearance to return to work.
The following day, April 4, Karstensen asked Consolidated's Transportation
Superintendent Kurt Kunde if he would help him get rehired. Kunde thereupon
telephoned Consolidated's Personnel Manager Arthur Battle who stated that Con-
solidated could not rehire Karstensen because he was not a "paid-up member of the
union."
The same day, April 4, Karstensen went to the offices of Respondent Local 1186
and informed the local's financial secretary that he desired to pay his delinquent
dues. After locating Karstensen's card in the "drop file," said official told Karsten-
sen he could not accept any dues from him.
On April 7, Karstensen went to the offices of Respondent District 94 and told its
business agent or business manager, Herbert Cooksey, that Consolidated "Wants
me back to work and they need me" and that he desired not only to pay the dues in
arrears but also to pay the required reinstatement fees. Cooksey, who previously
had been informed by the financial secretary of Respondent Local 1186 that Kar-
stensen had attempted to pay his delinquent dues and that the offer had been de-
clined because "he was on the drop list," informed Karstensen that the only way
he could be reinstated was for him to work for some firm in the trade, other than
Consolidated, for at least 30 days and then make application for reinstatement in
Respondent Local 1186.
After leaving Cooksey on April 7, Karstensen returned to the plant and informed
Kunde that Cooksey had stated that he would have to work elsewhere for at least
30 days before he could receive a Respondent Local 1186 clearance. Thereupon,
Kunde telephoned A. S. Hammond, a Respondent District 94 business representa-
tive and the writer of the April 2 termination request, and discussed with him the
Karstensen situation. Hammond informed Kunde that he could not do anything in
the matter. Kunde then asked to be connected with Cooksey. Cooksey told Kunde
that Karstensen could not be reinstated "at that time."
At a meeting held at the plant on April 7 or 8, at which Kunde, Hammond, Mason,
Karstensen, and others were present, Karstensen asked Hammond to accept the $60
reinstatement fee. Hammond replied that he could not accept the money, to quote
from Karstensen's credited testimony, "for the simple reason that I had to be em-
ployed by someone else other than Consolidated Rock for 30 days," and if he did
so, Karstensen could then file an application for reinstatement in Respondent Local
1186.
Sometime between April 7 and 9, Battle, after learning from Kunde that Con-
solidated was in great need of Karstensen's services, telephoned Cooksey and in-
quired why Karstensen could not be reinstated immediately since he was willing to
pay the required reinstatement fee. Cooksey replied, to quote from Battle's
credited testimony,
the only way that Mr. Karstensen could be reemployed by Consolidated
Rock was to find another job with another employer, an employer who had a
collective bargaining agreement with the Machinists Union, work for a period
of 30 days wherein [sic] he would then make application again to the Machin-
ists Union. He would then be accepted and at that time, after he again had
made application and joined the union, we [could] reemploy Mr. Karstensen
because he would then be again a member in good standing.
DISTRICT LODGE 94, INT'L ASSN. OF MACHINISTS, ETC. 1275
At the conclusion of his telephone conversation with Cooksey, Battle telephoned
Edward Munson, the manager of the industrial relations department of Blue Dia-
mond Corporation and a member of the negotiating committee, and, after inform-
ing Munson of Karstensen's reinstatement difficulties, requested Munson to discuss
the matter with Cooksey. Munson then called Cooksey who stated, among other
things, that Karstensen could not be rehired by Consolidated until he had worked
for at least 30 days for another employer having a collective bargaining "contract
with the Machinists Union" and then Karstensen could apply for reinstatement.
B. Concluding findings
Relying heavily on Standard Brands, Incorporated, 97 NLRB 737, Respondents
seek the dismissal of the complaint. The facts in that case are clearly distinguish-
able from those here. Karstensen, unlike the dischargees in Standard Brands, did
not challenge his discharge or seek reconsideration thereof, or seek reinstatement
to his former employee status. The Standard Brands case hinged entirely on the
finding of the Board that: V
regardless of the precise language used by the applicants, their requests for
work followed so soon upon the heels of the discharge, and were so closely
related to the turmoil resulting from those discharges that we cannot view
them as applications for new employment. They were more in the nature of
requests for reconsideration of the antecedent discharges.
Karstensen made a continued effort to be employed by Consolidated as a new
employee. He tendered the full reinstatement fee of $60 to Cooksey and to
Hammond rather than merely the dues owed .3
Both Cooksey and Hammond, in effect, told Karstensen, and others, that he could
not go to work for Consolidated unless he first became a member of Respondent
Local 1186. Then, they said, he could be cleared to return to Consolidated's employ.
By such statements to Karstensen Respondents, in violation of Section 8(b) (1) (A)
and (2) of the Act, restrained and coerced him in the exercise of his right to
refrain from joining a labor organization until required to do so as a condition of
employment under a valid union-shop clause.4 In addition, by refusing to notify
Consolidated of Karstensen's offer to pay the required reinstatement fee, and hence
of his eligibility for rehire, Respondents caused Consolidated to discriminate against
Karstensen in violation of Section 8(a)(3) of the Act, and to discriminate against
Karstensen with respect to whom union membership was denied on a ground other
than his failure to tender the required periodic dues. Consolidated was not only
willing but anxious to rehire Karstensen, who lost his status as a Consolidated
employee, together with his seniority and other benefits, on April 3. The fact that
Consolidated was in great need of Karstensen's service was communicated to both
Cooksey and Hammond. Nevertheless, neither Cooksey nor Hammond would
clear Karstensen for rehire. Because of Respondents' refusal to clear Karstensen
until November 24, Consolidated refused to rehire him prior to that date. By
refusing to rehire Karstensen until cleared by Respondents, Consolidated discrimi-
3It is true that Karstensen did not actually tender the $60. However, he advised both
Cooksey and Hammond that he was ready to pay that sum in order to be reinstated in
Respondent Local 1186 His failure to make the actual tender is excused because to do
so would have been a futile gesture. This finding is buttressed by the following testimony
of 'Cooksey :
Q. (By General Counsel.) Did you advise Mr Battle that Mr. Karstensen
couldn't be reinstated or cleared, even if be offered a million dollars, because it was
not a matter of money, but policy [in] accordance with your interpretation of
the contract?
A. I sure did.
TRIAL EXAMINER : Even if [Karstensen] would have tendered the money to you,
you wouldn't have accepted It?
The WITNESS (Cooksey) : Not at that time, because he wasn't employed.
* Whitlock Corporation, 103 NLRB 909; Convair, A Division of General Dynamics
Corporation, 111 NLRB 1055. On petition for enforcement the Ninth Circuit disagreed
with the Board as to the meaning of the contract language, but impliedly confirmed the
principle enunciated by the Board, sub nom. NLRB. v. International Association of
Machinists , Lodge No. 113, et al. (Convair, A Division of General Dynamics Corporation),
241 F. 2d 695.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated against Karstensen in regard to hire thereby encouraging membership in
Respondents.5
In agreement with the General Counsel the Trial Examiner finds that article I(c)
of the collective-bargaining contract in issue in this proceeding is clearly violative
of Section 8(a)(3) of the Act because its express terms give preference in overtime
work assignments to "employee members of the Union." The Board, with court
approval, has held that the mere existence of illegal provisions, such as here under
discussion, in a collective-bargaining contract without more or "apart from its
actual enforcement" is violative of Section 8(b)(1)(A) and (2) of the Act.6 It
thus follows that the contention that because this discriminatory preference clause
was not enforced, no finding of unfair labor practices can be properly made with
respect thereto is without merit. Likewise, Respondents' various contentions, as
set forth in their joint brief, with respect to the various issues here involved, includ-
ing their contentions with respect to article I(c) of the contract, are, and each of
them is, without merit.
Upon the entire record in the case, the Trial Examiner is convinced, and finds,
that Respondents (1) restrained and coerced Karstensen in the exercise of the rights
guaranteed in Section 7 of the Act, and (2) caused Consolidated to discriminate
against Karstensen in violation of Section 8(a)(3) of the Act, thereby violating
Section 8(b)(1)(A) and (2) thereof. The Trial Examiner further finds that not
only is article I(c) of the aforementioned collective-bargaining agreement unlawful
for said provision tends to restrain and coerce the employees and prospective
employees of the signatories to the aforementioned multiemployer agreement in the
exercise of the rights guaranteed in Section 7 of the Act, but the entire union-security
clause of said agreement is invalid.?
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 Consolidated, and with operations of the other
employers here involved, set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
the Trial Examiner shall recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the purposes of the Act. Since
Respondents' illegal contract was made with 14 employers, the Trial Examiner
shall recommend that Respondents not only cease and desist from maintaining
and giving effect to the illegal union-security provisions thereof with Consolidated
but also with the other employers signatory to said contract.
Having found that Respondents caused Consolidated to discriminate in regard
to the hire and tenure of employment of Irvin Karstensen, the Trial Examiner shall
recommend that they jointly and severally make him whole for any loss of pay
he may have suffered as a result of the discrimination by paying to him a sum of
money equivalent to that which he would have earned as wages but for the dis-
crimination against him.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F. W. Woolworth Company, 90 NLRB 289.
5 The Radio Officers' 'Union of the Commercial Telegraphers Union, AFL (A H. Bull
Steamship Company) v. N L R.B., 347 U.S. 17; NLRB. v. Oklahoma City General
Drivers, etc. (Chief Freight Lines Company ), 235 F. 2d 105 (C.A. 10) ; N.L.R B v. Local
369, International Hod Carriers, etc (A. C Frommeyer Co ), 240 F. 2d 539 (CA. 3).
See also Mountain Pacific Chapter, Associated General Contractors, Inc, 119 NLRB 883;
Rockaway News Supply Company, Inc, 94 NLRB 1056; Sheet Metal Workers Inter-
national Association, Local Union No 99 (Dohrmann Hotel Supply Company), 120
NLRB 1366.
0Gottfried Baking Company, Inc, 103 NLRB 277, enfd. as mod . 210 F 2d 772 (C.A. 2) ;
New York State Employers Association, Inc. and Red Star Express Lines of Auburn, Inc.,
93 NLRB 127, enfd sub nom. Red Star Express Lines of Auburn, Inc. v. N.L.R.B.,
196 F. 2d 78 (CA. 2).
4 See Mountain Pacific, etc., supra ; Imperial Wire Company, Inc., 118 NLRB 775;
Convair, A Division of General Dynamics Corporation, supra.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 926 1277
The unfair labor practices found to have been engaged in by Respondents are of
such a character and scope that in order to insure the employees and prospective
employees of the employers here involved their full rights guaranteed them by the
Act it will be recommended that Respondents cease and desist from in any manner
interfering with, restraining , and coercing the employees and the prospective
employees in their rights to self-organization.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Consolidated Rock Products Company and the 13 other employer-members
signatory to the aforementioned collective-bargaining agreement are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. District Lodge 94, International Association of Machinists and its affiliated
Local Lodges 1186 and 1484, AFL-CIO, are labor organizations within the meaning
of Section 2(5) of the Act.
3. By maintaining an agreement which contains and involves terms and condi-
tions of employment requiring the employers signatory thereto to discriminate against
their employees and against applicants for employment in violation of Section 8 (a) (3)
of the Act, Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b) (1) (A) and (2 ) of the Act.
4. By causing or attempting to cause Consolidated Rock Products Company to
discriminate against Irvin Karstensen in violation of Section 8(a)(3) of the Act,
Respondents have engaged in, and are engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
5. By the aforementioned acts, Respondents have restrained and coerced the
employees of, and applicants for employment with, the employers here involved
in the exercise of the rights guaranteed by Section 7 of the Act, and have thereby
engaged in and are engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
6. 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.]
International Union of Operating Engineers , Local 926, AFL-
CIO and Tip Top Roofers . Case No. 10-CD-138. Maroh 23,
1960
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the, Act, which
provides that "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph 4(d) of
Section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair practice shall have
arisen...."
On December 4, 1959, Tip Top Roofers, herein called the Employer,
filed with the Regional Director for the Tenth Region a charge alleg-
ing, in substance, that on or about December 3, 1959, International
Union of Operating Engineers, Local 926, AFL-CIO, herein called
Local 926, violated Section 8(b) (4) (D) of the Act by inducing and
encouraging the employees of the Employer to engage in a strike or
concerted refusal to work with the object of forcing or requiring the
Employer to assign certain work to members of Local 926 rather than
126 NLRB No. 146.