E & B Brewing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1958

122 N.L.R.B. 354 (N.L.R.B. 1958)

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding all other employees, clerical employees, professional em-
ployees, guards and watchmen, and supervisors as defined in the
Act."'
[Text of Direction of Election omitted from publication.]
18 The petition as amended describes a unit of all letterpress , gravure, newspaper press-
men, apprentices and helpers , and all offset or lithographic production employees, in-
cluding all offset or lithographic pressmen , apprentices and helpers , artists , pasteup men,
cameramen , platemakers , and strippers . The record indicates , however, that this unit
description refers to 14 employees, all of whom spend the great majority of their time
doing letterpress work . The Intervenor , while not seeking to represent any of these
14 employees , contends that the unit as described in the petition , insofar as it identifies
offset classifications , infringes upon its jurisdictional rights . The record indicates that
there are no employees of the Employers classified as offset or lithographic pressmen,
apprentices and helpers , artists , pasteup men , cameramen , platemakers , and strippers.
Accordingly , we do not include these classifications in the unit . In so describing the
unit , we are in no way to be construed as rendering a jurisdictional award regarding job
content or work assignments . See The Plumbing Contractors Association of Baltimore,
Maryland, Inc., 93 NLRB 1081, 1087.
E & B , Brewing Company, Inc. and Drivers and Helpers Local
No. 38, International Union of United Brewery, Flour , Cereal,
Soft Drink & Distillery Workers of America, AFL-CIO and
Thomas Pfeifle . Cases Nos. 7-CA-1669 and 7-CB-363. Decem-
ber 9, 1958
DECISION AND ORDER
On February 21, 1958, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in this case, finding that the Respondents
had not violated Section 8(a) (3) and (1) of Section 8(b) (2) and
(1) (A), as alleged in the complaints, and recommending that the
complaints be dismissed in their entirety, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the General
Counsel and the Respondent Company filed exceptions to the Inter-
mediate.. Report, and the .General Counsel also filed a brief and an
addendum. Pursuant to leave, the Respondent Union filed a reply
brief and an addendum.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings of the Trial Examiner but
not his conclusions or recommendations, as indicated below.
In. his Intermediate Report the Trial Examiner found,. and we
agree, that : The Company and the Union had an industrywide ex-
clusive hiring-hall contract, which the Union agreed to operate with-
out discrimination against nonmembers; the Company did not follow
122 NLRB No. 50.
E & B BREWING COMPANY, INC. 355
the contractual procedure for employing Pfeifle as a truckdriver (to
wit : by applying to the Union's employment office or hiring hall) ;
the Union on or about March 8, 1957, and again on March 12 advised
the Company that it had violated the contract by failing to fill the
position through the Union's hiring hall and by filling it with a non-
member; on March 19 and thereafter the Union dropped its objec-
tion based on Pfeifle's nonmembership, and demanded his discharge
solely in order to force the Company to comply with the hiring-hall
clause of the contract; for the same reason the Union refused the
Company's request to clear Pfeifle, but at the same time agreed to
refer Pfeifle to any other employer covered by the industrywide
contract; and the Company accordingly discharged Pfeifle on or
about March 21 with the explanation that the discharge was due to
the pressure from the Union.
On these facts, and because the contract contained a clause that
the Union would operate the hiring hall without discrimination
against nonmembers, the Trial Examiner concluded that the hiring-
hall contract was legal and valid, and constituted a defense to the
conduct of the Company and the Union.
After the issuance of the Intermediate Report, however, the Board
issued its opinion in Mountain Pacific Chapter of the Associated
General Contractors, Inc., et al., 119 NLRB 883, reversing a similar
conclusion of another Trial Examiner and holding that an exclusive
hiring-hall contract was unlawful unless it explicitly provided for
three safeguards, including a requirement that the contracting par-
ties duly post all provisions relating to the functioning of the hiring
arrangement. The contract in this case contained no such safeguard,
as the Union concedes. But the Union argues that the basic rules of
due process preclude the so-called retroactive application of such a
requirement. We find no merit in this argument.,
The Company argued in its exceptions that certain evidence,, not
further set forth, showed that it discharged Pfeifle "for no other
reason than his own misconduct" and was "in no way influenced by
pressure from the Union." However, we see no reason for disturbing
the Trial Examiner's contrary finding.
We find, for the foregoing reasons, that by discharging Pfeifle the
Company violated Section 8(a) (3) and (1), and the Union violated
Section 8(b) (2) and (1) (A) by attempting to cause and causing
this discharge.
THE REMEDY
Having found that each of the Respondents has violated the Act,
we shall order them to cease and desist therefrom. We shall further
order that the Company offer Thomas Pfeifle immediate and full
1 See the Mountain Pacific case, supra.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges; and
that the Union notify the Company in writing, and furnish a copy
thereof to Pfeifle, that it withdraws its objections to his employment
and requests the Company to offer Pfeifle reinstatement. We shall
also order the Company and the Union jointly and severally to make
Pfeifle whole for any loss of pay suffered by reason of the dis-
crimination against him, by payment to him of a sum of money
equal to the amount he would normally have earned as wages from
the date of the discrimination until compliance by each Respondent
respectively with the reinstatement provisions, less his net earnings
during this period. The loss of earnings will be computed in accord-
ance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289. As the Trial Examiner did not find that the Respondents
discriminated against Pfeifle, the period from the date of the Inter-
mediate Report to the date of our Order shall, in accordance with our
usual practice, be excluded in computing the amount of back pay
due him. See the Mountain Pacific case, supra. We shall also order
that the Company make available to the Board, upon request, payroll
and other records to facilitate the checking of compliance with our
Order.
The General Counsel in his brief to the Board first raised the con-
tention, not further amplified, that "disgorgement under the Brown-
Olds rule . . . should be ordered." The Brown-Olds case (J. S.
Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB
594) ordered a union to reimburse employees for the dues and assess-
ments which the record showed were collected as a condition of em-
ployment since the beginning of the 6-month statutory period, pur-
suant to an unlawful closed-shop contract. Here the General Counsel
has not alleged that there was a substantively unlawful contract or
hiring practice. We therefore find his Brown-Olds contention without
merit.'
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby. orders that : .
A. Respondent E & B Brewing Company, Inc., and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Encouraging membership in Drivers and Helpers Local No.
38, International Union of United Brewery, Flour, Cereal, Soft
2 See Charles Ostrowski at at. d /b/a -Philadelphia Woodwork Company, 121 NLRB
1642. Cf. Los Angeles-Beattie Motor Empress, Incorporated, 121 NLRB 1629.
E & B BREWING COMPANY, INC. 357
Drink & Distillery Workers of America, AFL-CIO, or any other
labor organization of its employees, by discharging or in any other
manner unlawfully discriminating against any employee in regard
to hire or tenure of employment or any term or condition of employ-
ment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer Thomas Pfeifle immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
:seniority or other rights and privileges, and jointly and severally
with the Union make him whole for any loss of pay suffered as a
result of the discrimination against him, in the manner set forth
hereinabove.
(b) Preserve and make available to the Board or its agents upon
request, for examination or copying, all payroll records, social-
:security payment records, timecards, personnel records and reports,
and all other records necessary or useful to an analysis of the amount
of back pay due under the terms of this Order.
(c) Post at its place of business in Detroit, Michigan, copies of the
notices attached hereto marked "Appendix A" and, as soon as for-
warded by the Regional Director, "Appendix B." 3 Copies of such
notices, to be furnished by the Regional Director for the Seventh
Region, shall be duly signed and posted immediately upon receipt
thereof and maintained for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
B. Respondent Drivers and Helpers Local No. 38, International
Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of America AFL-CIO, and its officers, representatives, and
agents shall :
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Causing or attempting to cause the Company to discriminate
against any of its employees in violation of Section 8 (a) (3) of the
Act.
(b) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with the Company make whole Thomas
Pfeifle for any loss of pay suffered as a result of the discrimination
against him in the manner set forth hereinabove.
(b) Notify Thomas Pfeifle and the Company, in writing, that it
withdraws its objection to Pfeifle's employment and requests the
Company to offer him reinstatement.
(c) Post at its business offices copies of the notice attached hereto
marked "Appendix B."' Copies of such notice, to be furnished by
the Regional Director for the Seventh Region, shall be duly signed
and posted immediately upon receipt thereof and maintained for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
MEMBERS RODGERS AND JENKINS took no part in the consideration
of the above Decision and Order.
See preceding footnote.
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 you that :
WE WILL NOT encourage membership in Drivers and Helpers
Local No. 38, International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America, AFL-CIO,
E & B BREWING COMPANY, INC. 359
by discharging any employee for failure to be cleared or referred
by the above-named Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Thomas Pfeifle immediate and full reinstate-
ment to his former or a substantially equivalent position with-
out prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered as a result of our
discrimination against him.
All our employees are free to become or remain or to refrain from
becoming 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.
E & B BREWING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS
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 notify E & B Brewing Company, Inc., and Thomas
Pfeifle, in writing, that we withdraw our objections to his em-
ployment and request his reinstatement to his former or an
equivalent position.
WE WILL make Thomas Pfeifle whole for any loss of pay suf-
fered because of the discrimination against him.
WE WILL NOT cause or attempt to cause E & B Brewing Com-
pany, Inc., to discriminate against any employee in violation of
Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employ-
ees in the exercise of the rights guaranteed in Section 7 of the
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 in Section 8(a) (3) of
the Act.
DRIVERS AND HELPERS LOCAL No. 38,
INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT
DRINK & DISTILLERY WORKERS OF
AMERICA, 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on March 11, 1957, and amended on June 13, 1957,
by Thomas Pfeifle, an individual, herein referred to as Pfeifle or the Charging
Party, against Drivers and Helpers Local No. 38, International Union of United
Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO,
hereinafter referred to as the Union, and upon a charge duly filed on June 13,
1957, by Thomas Pfeifle, an individual, against E & B Brewing Company, Inc.,
hereinafter referred to as Respondent Company, the General Counsel of the Na-
tional Labor Relations Board, herein called General Counsel' and the Board,
respectively, by the Regional Director for the Seventh Region (Detroit, Michigan),
issued individual complaints dated July 15, 1957, against Respondent Union and
against Respondent Company, alleging in substance that: (1) "Respondent [Union],
on or about March 8 through March 20, 1957, attempted to cause and caused the
Company to terminate the employment of Thomas Pfeifle because of his non-
membership in the Respondent and because he had not been cleared or referred
by the Respondent although neither membership nor referal was available to
Pfeifle on a nondiscriminatory basis"; and (2) "Respondent [Company], on or about
March 20, 1957, a date less than 30 days after his employment, discharged Pfeifle
because of his nonmembership in the Union and because the Union demanded his
discharge and refused to refer or clear him for employment, although the Re-
spondent at the time of said discharge had reasonable grounds for believing (1)
that union membership was not available to Pfeifle on the same terms and con-
ditions generally applicable to other members; (2) that union membership was de-
nied to Pfeifle for reasons other than his failure to tender the periodic dues and
initiation fees uniformly required as a condition of acquiring membership; and (3)
that the Union's referal and clearance practices were discriminatorily administered,"
all in violation of Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136,
herein called the Act. Copies of the complaints, the charges and amended charges
together with the order consolidating cases for hearing signed by the Regional
Director for the Seventh Region on July 15, 1957, were served upon the Re-
spondent Union and the Respondent Company. Respondents duly filed their an-
swers wherein they admitted certain allegations of the complaints but denied the
commission of any unfair labor practices.
Pursuant to notice a hearing was held on October 8, 9, and 10, 1957, at Detroit,
Michigan, before the duly designated Trial Examiner. The General Counsel, the
Union, and the Company were represented at the hearing by counsel. Full op-
portunity to be heard, to examine and cross-examine witnesses , and to introduce
evidence bearing upon the issues were afforded all the parties. Oral argument at
the conclusion of the hearing was waived but briefs were received on or about
November 20, 1957, from all parties.
' This term specifically includes counsel appearing for the General Counsel at the
hearing.
E & B BREWING COMPANY, INC. 361
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
E & B Brewing Company, Inc., is now, and at all times herein mentioned has
been, a corporation with its principal place of business at Detroit, Michigan, herein
called the Detroit Plant, where for many years and at all times mentioned herein
it engaged in the production and distribution of beer and related products.
Respondent Company, in the course and conduct of its business operations as
aforesaid, annually causes large quantities of raw materials to be shipped to its
Detroit Plant in interstate and foreign commerce from points outside the State of
Michigan and causes large quantities of products produced by it at its Detroit Plant
to be shipped therefrom in interstate and foreign commerce to States of the United
States other than the State of Michigan and to foreign countries.
During the calendar year ending December 31, 1956, which is representative of
all times hereto material, Respondent Company shipped products valued in excess
of $50,000 from its Detroit Plant to points outside the State of Michigan, and dur-
ing the aforesaid calendar year the Respondent Company received at its Detroit
Plant direct shipments from points outside the State of Michigan valued in excess
of $500,000.
The Respondents admit and the Trial Examiner finds that Respondent Company
is and at all times material herein has been engaged in commerce within the mean-
ing of the Act.
H. THE ORGANIZATION INVOLVED
Drivers and Helpers Local No. 38, International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor organi-
zation admitting employees of Respondent Company to membership.
III. THE UNFAIR LABOR PRACTICES
Thomas Farell Pfeifle is a young man who graduated in January 1957 from
Western Michigan University with degree in business administration. He appar-
ently was able to attend college through a scholarship obtained for him through
the good offices of Leroy Payne, the president of the Respondent Company.
During his college career vacations Pfeifle was able to obtain temporary employ-
ment at the Respondent's brewery also through the kindness of Payne. This con-
tinued from 1952 through 1956. In 1953, Pfeifle worked on Respondent Com-
pany's beer trucks which required him to become a member of the Respondent
Union which he did. When he returned to college in 1954, he took out a with-
drawal card from the Union which would keep him in good standing for a period
of 1 year but which on its face showed that it had to be renewed at a cost of $2
at the end of the first year on pain of automatic expulsion and loss of membership
in the Union. In October 1955, Pfeifle failed to renew his withdrawal card as he
had reason to believe that he would not return to the beer industry. During the
year 1955-56, Pfeifle, according to his best recollection, worked less than 2 weeks
for Respondent Company. He never renewed his withdrawal card nor attempted
to pay his union dues or to revive his membership in the Union.
After graduation in January 1957, Pfeifle returned to his friend, Payne, and asked
for a job with which to support his wife and family. At the time Payne had
nothing in the brewery for Pfeifle as these winter months are the slowest of the
year in the industry which in 1957 had placed many employees in a laid-off status.
However, Payne did have Pfeifle make a survey of the Respondent Company's
television advertising and expressed a willingness to have Pfeifle replace driver
Burkheimer when that employee laid off for an anticipated surgical operation and
hoped that he, Payne, could continue thereafter to use Pfeifle as a replacement
driver for other regular drivers as they took their vacations until October 1957,
when some five of the Company's regular drivers were scheduled for retirement.
Apparently Pfeifle asked for a guarantee of employment from Payne but was
refused. Pfeifle did accept the survey job which was outside the jurisdiction of
the Union.
Respondent Company operated its brewery under the terms of an industrywide
but individually signed agreement with the Union which contained the following
provision:
The employer agrees that in the event he shall require additional employees
in the classifications of employment covered by this agreement, he shall notify
362 DECISION S OF NATIONAL LABOR RELATIONS BOARD
the employment office operated by the Union. In the event that said em-
ployment office is unable to supply help satisfactory to the employer within
twenty-four (24) hours following the request, the employer shall be free to
hire in the open market . If a vacancy must be filled immediately , the em-
ployer shall nevertheless notify the employment office and if satisfactory help
cannot be supplied to meet the employer's requirement the employer may hire
from the open market but before filling the vacancy permanently he shall
consider applicants referred by the Union within said twenty-four (24) hours.
The facilities of the employment office operated by the Union shall be made
available to both members and nonmembers of the Union and the Union
warrants that in the operation of said employment agency and referals to the
employer , it will not discriminate against any individual applicant for em-
ployment because of nonmembership in the Union, or otherwise restrain or
coerce such applicant because of nonmembership in the Union.
On February 22,2 having finished the TV survey, Pfeifle was assigned to a truck-
driver's job to replace driver Burkheimer, who had to report to the hospital for
his operation, by Respondent Company Personnel Manager Reig. Neither Reig
nor Pfeifle notified the Union of this employment even though the driver 's job was
covered by the union contract , nor was the Union asked to send any applicants
for that job to the Respondent's employ.
At or about the time of his assignment to the Burkheimer trucks Pfeifle repaired
to the union office at Reig's suggestion to check upon his status with the Union.
After consulting the financial records he was told that he had failed to renew
his withdrawal card as required upon the face thereof and had therefore been
expelled from membership for failure to pay such dues. He then inquired about
his chances of securing a job in the industry through the hiring hall and was told
by two different union representatives that his chances would be nil due to the
number of men then laid off by the industry.
Pfeifle testified that each of these union representatives told him that he could
not secure a union card because the union books were closed. This testimony was
denied by both representatives. The Trial Examiner cannot credit Pfeifle's testi-
mony on this point because the evidence is undisputed that the Union customarily
granted union cards and/or referred nonmembers to employers who specifically
requested such individuals . The Trial Examiner is convinced that Pfeifle misinter-
preted the remarks and so finds.
Pfeifle reported his status to Reig but never offered to join the Union.
Sometime prior to March 8, Union Shop Steward St. Auban questioned Pfeifle's
right to employment on the Burkheimer truck under the union contract. Pfeifle
at this time made some remarks during the discussion to the effect that the Union
was not going to keep him from working. During this argument Pfeifle told
St. Auban that if St. Auban were 20 years younger, he would invite St. Auban
outside to settle the argument and that there would be two blows struck: one
when Pfeifle hit St. Auban and the second when St. Auban hit the ground. This
episode was reported to Reig and to Payne.
On or about March 8, Business Agent Bondy, acting upon a complaint by St.
Auban, telephoned and asked Reig if he had an employee by the name of Pfeifle
employed as a truckdriver. Reig agreed but claimed that Pfeifle was a member
of the Union. After an investigation Bondy maintained that in hiring Pfeifle the
Respondent Company had violated its agreement with the Union in two particu-
lars: first, by hiring a man who had been expelled from the Union for nonpay-
ment of dues , and second , in failing to hire Pfeifle through the union hiring hall.
Reig informed Pfeifle of the Bondy telephone calls and his objections to the
employment of Pfeifle by the Respondent Company.
On March 11 during his lunch period on the truck Pfeifle reported to the
Regional Office of the Board where he sought advice, gave a statement , and signed
a charge against the Union. Pfeifle reported his action to Respondent Company.
On March 12, Lindsay , president of Respondent Union , telephoned Reig asking
the status of the Pfeifle case and stating that he understood that the Company
had agreed to pull Pfeifle off the job by that Tuesday . Lindsay maintained, as had
Bondy, that Respondent Company had violated its agreement with the Union by
hiring Pfeifle on the Burkheimer truck by reason of having hired a man expelled
from membership for nonpayment of dues and by failing to hire through the union
hall as required by the contract.
During the following period there were numerous telephone calls between the
parties over the matter.
"All dates herein are in the year 1957 unless otherwise specified.
E & B BREWING COMPANY, INC. 363
On March 19 the Detroit Brewers Association had a meeting with the Union
at noon . As the meeting was breaking up Bondy remarked to the group as a
whole that the Union was sick and tired of having the employers violating their
contract with the Union by (1) not using the hiring hall and (2 ) not posting
vacant jobs . Bondy stated that he was not pointing at any particular employer
but that Reig could tell them about E & B. Lindsay spoke up and recalled that
Reig had stated in one of his conversations over the telephone that he was oper-
ating an open shop. When Reig disputed the accuracy of this statement, Bondy
closed the argument by stating that he was going to enforce a hiring-hall clause
even to the extent of refusing to go arbitration.
On the following day, March 20, Bondy telephoned and gave Reig a deadline
to discharge Pfeifle, saying that he was tired of playing games. Reig requested
an extension of time in which to make up his mind and agreed to call Bondy
back later. Reig thereupon telephoned Payne who had gone to New York the
day before and told him of the situation . Payne ordered Reig to discharge Pfeifle
before his 30-day probationary period was up because of certain things which
Payne stated had destroyed his usefulness to E & B. Reig argued for keeping
Pfeifle and trying out the Union. Payne reiterated his order to discharge Pfeifle.
Later that same afternoon Reig telephoned Bondy and asked if there were any
procedure for notifying a man of his expulsion from the Union. Bondy agreed
that there was but that it was not applicable in the case of a man on a withdrawal
card. Reig then inquired if Bondy would honor a request to the Union to send
Pfeifle to E & B for employment. Bondy answered that under the circumstances
he could not honor such a request but that, if Pfeifle would come down to the
union hall , he, Bondy, would give him a card for any brewery but that of the
Respondent Company and would even give Pfeifle a card to an E & B distributor-
ship but could not return him to the E & B Brewery. At the conclusion of this
conversation Reig finally agreed to discharge Pfeifle that same evening.
The next day Pfeifle was sent into Reig who informed him of the past events
and told him that due to the pressure from the Union he would have to discharge
Pfeifle. Reig did not tell Pfeifle of his telephone conversation with Payne.
Pfeifle has not worked thereafter for the Respondent Company.
Conclusions
The General Counsel in his brief commenced his discussion of the 8 (b) (1) (A)
and (2 ) aspects of the present case by stating : "The record shows conclusively
that the Union demanded Pfeifle's discharge because his withdrawal card had ex-
pired and because his employment had not been cleared by the Union."
The question of Pfeifle 's union membership was originally raised by Respondent
Company on or about February 19, while discussing Pfeifle's contemplated future
employment on the Burkheimer truck and long before the Union had any informa-
tion thereof. It was raised a second time on March 8, when apparently Reig
attempted to justify the Company 's preferential treatment of Pfeifle as well as its
failure to seek Burkheimer 's replacement through the hiring hall on the grounds
that Pfeifle was , after all, a member of the Union . On this occasion Bondy had
to check the membership records before discovering that Pfeifle's membership had
lapsed in October 1955 for nonpayment of dues. After making this check, Bondy
included among his objections the hiring of a man expelled from membership for
nonpayment of dues with the Respondent Company's breach of contract in failing
to secure employees through the hiring hall as required by its contract.
By March 19 the question of union membership had dropped out of the matter
and the dispute was reduced to its central and sole issue: Respondent Company's
failure to comply with the requirements of the hiring -hall clause of its contract
with the Union which required new employees to be hired through the hiring ball.
But the General Counsel contended that there was discrimination against Pfeifle
in the instant case because the Union refused to issue him a work permit and to
assign him to the Burkheimer job when requested to do so by the Respondent on
March 20.3
8 After having rested his case and during the cross -examination of a union witness, the
General Counsel suddenly sought to show an illegal 'administration of the hiring hall.
As the complaint against the Union contained no allegation of such an unfair labor
practice and as no evidence to that effect had been adduced during the General Counsel's
case-in -chief, the Trial Examiner ruled the proposed attack on the hiring hall as such
incompetent. During the colloquy following this ruling , the General Counsel appeared to
agree with said ruling when he stated : "We are not trying to throw out the whole
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence is undisputed that the Union customarily honored requests by em-
ployers (including those made by the Respondent Company) that specified non-
union individuals be assigned to said employers for certain specific jobs and that
the Union would issue work cards to such individuals and the hiring hall would
assign said individuals as requested. But in the instant case, no such request was
made by the Respondent Company to the Union or the hiring hall for the assign-
ment of Pfeifle until nearly a month after Pfeifle had been driving the Burkheimer
truck without notice to the Union or the hiring hall and in derogation of the
hiring-hall clause of the contract. It is true that in this instance the Union refused
to honor the Company's belated request for the assignment of Pfeifle to it. For
the Union at that late date to have honored such request would have both con-
doned the Company's prior breach of the hiring-hall clause and nullified the clause
entirely.
If the Company's request for the assignment of Pfeifle had been made prior to
the employment of Pfeifle on the Burkheimer truck and at that time had been
refused by the Union, then perhaps the General Counsel would have proved dis-
criminatory treatment based upon nonmembership. But in making this argument
under the chronology proved here, the General Counsel appears to be arguing that
the Union is required to discriminate in favor of nonmembers-which would be
just as much a violation of the Act as to discriminate in favor of members. Fur-
thermore, for the Union to discriminate in favor of nonmembers as the General
Counsel seems to require here would amount to a violation of the intent, at least,
of the union guarantee not to discriminate because of nonmembership contained
in the hiring-hall clause itself, if not actually violating the words of that guarantee.
If the Union intended to enforce its legal contract and to abide thereby, the
Trial Examiner is at a loss to see how it could have acted other than the way it
actually did act in this case. The hiring hall, at least for the purposes of this case,
was being run in a nondiscriminatory manner. This being so, it is perfectly pos-
sible that the man being deprived of employment by the preferential treatment
accorded Pfeifle by Respondent Company may also have been a nonmember.
As a matter of fact the whole trouble here appears to stem from the intent of
Pfeifle-and, perhaps, of the Company-to be sure to secure preferential treatment
for Pfeifle personally. Pfeifle himself indicated his intent to secure personal pref-
erential treatment when at the outset of this matter he told St. Auban that the
Union was not going to keep him from employment on the Burkheimer truck. In
order to make sure of such preferential treatment, Pfeifle and the Company sought
to circumvent the legal and regularly required employment procedures, e. g., by
going through the regular request for assignment prior to employment to the hiring
hall. Nor was Pfeifle the least bit hesitant in asking Board assistance in his desire
to retain that preferential treatment for he filed his charge in this matter within
3 days of the Union's very first inquiry into the question of his illegal preferen-
tial treatment.
The trouble here is that there has been no discrimination against Pfeifle based
upon his nonmembership in anything which has been done in the instant case.
The Union which is under statutory requirement to represent all of the employees
and under contractual requirement not to discriminate because of nonmembership
has in all its actions here acted to comply in both regards. It has prevented
Pfeifle from securing personal preference as required by both the statute and by
its legal labor agreement with the Respondent Company.
The Union was merely insisting upon compliance by the Company with the hiring-
hall clause of its contract.
Consequently , the Trial Examiner must conclude that the Union did not violate
either Section 8(b)(1)(A) and (2) of the Act.
As for the complaint of discriminatory treatment by Respondent Company, the
evidence is quite clear here that, while the Company very well may have been
trying to secure preferential treatment for Pfeifle personally , that attempt was not
based on an effort to encourage or discourage union membership and, therefore,
was no violation of Section 8(a)(3) of the Act. Furthermore , Respondent Com-
pany had no reason to believe that the Union was attempting to discriminate
against Pfeifle for any reason other than the fact that his membership had expired
hiring hall . We are saying there was discrimination with respect to the individual
himself."
As the hiring-hall clause of the contract involved here contained a guarantee by the
Union not to discriminate in its referrals on the basis of nonunion membership, the
majority opinion in Mountain Pacific Chapter of the Associated General Contractors,
Inc., 119 NLRB 883, deciding, according to other Board publications, that hiring halls
without such assurances are illegal, Is of no applIcation in the instant matter.
Y
DANA CORPORATION 365
due to the nonpayment of dues, which happened to be the truth And in addition
the Respondent Company knew full well from the very beginning that the Union
was attempting to secure compliance with its legal hiring-hall clause-without re-
gard to Pfeifle's membership or nonmembership.
Consequently, the Trial Examiner must dismiss this complaint as to Respondent
Company.
Under these circumstances the Trial Examiner sees no necessity for even dis-
cussing the claim of Respondent Company that it discharged Pfeifle for numerous
acts which appeared to have annoyed Payne personally and which had nothing to
do with encouragement or discouragement of union membership.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, the Trial Examiner must make the following:
CoNcLusIoNs of LAW
1. Drivers and Helpers Local No. 38, international Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor,
organization within the meaning of Section 2(5) of the Act.
2. E & B Brewing Company, Inc., is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. Neither Respondent Company nor Respondent Union , or either of them, has
engaged in any unfair labor practice alleged in the complaint.
[Recommendations omitted from publication.]
Dana Corporation and International Union , International So-
ciety of Electrical Craftsmen , affiliated with International
Society of Skilled Trades,' Petitioner
Dana Corporation and International Union , International Asso-
ciation of Tool Craftsmen, affiliated with National Inde-
pendent Union Council and International Society of Skilled
Trades,2 Petitioner
Dana Corporation and International Union , International Asso
ciation of Stationary Engineers , affiliated with International-
Society of Skilled Trades,3 Petitioner
Dana Corporation and International Union, Millwrights Inter-
national Association, affiliated with International Society of
Skilled Trades,4 Petitioner
Dana Corporation and International Union, International Ma-
chine Repairmens Association, affiliated with International
Society of Skilled Trades,5 Petitioner. Cases Nos. 35--RC-1545,
35-RC-1546, 35-RC-1548, 35-RC-1549, and 35-RC-1561. Decem-
ber 9, 1958
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held on the consolidated cases
1 Herein called Electrical Craftsmen.
9 Herein called Tool Craftsmen.
Herein called Stationary Engineers.
* Herein called Millwrights.
s Herein called Machine Repairmen.
122 NLRB No. 54.