Erie Sand Steamship Co.

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 63 (N.L.R.B. 1971)

ERIE SAND STEAMSHIP COMPANY 63
Erie Sand Steamship Company and Howard A . Jonas.
Case 6-CA-5001
March 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 18, 1970, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Erie Sand Steamship Company, Erie,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
In agreeing with the Trial Examiner that Jonas was denied
employment for discriminatory reasons, we rely on the fact that the
aggressive fashion in which Jonas discharged the duties of his office as a
union business representative was the substantial, contributing factor in the
Respondent's refusal to hire him.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties except the charging party
189 NLRB No. 13
represented , was held before me in Erie , Pennsylvania, on
September 9, 1970, upon the General Counsel's complaint,I
dated July 20, 1970, and respondent's answer . The sole
issue raised by the pleadings and litigated at the trial was
whether respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein called
the Act), by refusing to hire Howard Jonas , a former
business representative of International Union of Operat-
ing Engineers , Local 66 , AFL-CIO (herein called the
Union).
Upon the entire record , 2 upon my observation of the
witnesses and their demeanor while testifying , and upon
careful consideration of the arguments made and the briefs
submitted by the General Counsel and respondent ,3 I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Pennsylvania corporation whose principal
office is located in Erie, Pennsylvania, is engaged in the
business of selling sand which it dredges from Lake Erie.
During the year ending on July 19, 1970, a representative
period, respondent sold and shipped to customers located
outside the Commonwealth of Pennsylvania sand valued at
more than $50,000. Accordingly, I find that respondent is
engaged in commerce within the meaning of the Act and
that the assertion of jurisdiction over this matter by the
National Labor Relations Board (herein called the Board)
is warranted. Siemons Mailing Service, 122 NLRB 81, 85.
It. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case is concerned with respondent's refusal to
hire Howard Jonas, a former business representative of the
Union, whom the Union referred to respondent for
employment. The General Counsel contends that respon-
dent did not employ Jonas because of the militancy he
exhibited while a representative of the Union and that
respondent thereby violated Section 8(a)(1) and (3) of the
Act.4 Denying this, respondent argues that Jonas was not
I The complaint was issued on a charge filed on April 29. 1970. by
Howard A. Jonas.
2 Issued simultaneously is a separate order correcting obvious
inadvertent errors in the stenographic transcript of this proceeding.
3 Although all the arguments made by General Counsel and respondent
and the authorities cited by them in support of their respective positions.
whether appearing in their briefs or made orally during the trial. may not
be discussed in this Decision. each has been carefully weighed and studied.
4 In pertinent part these sections provide:
Sec. 8 ( a) It shall be an unfair labor practice for an employer-
(1) to interfere with. restrain , or coerce employees in the exercise of
the rights guaranteed in section 7:
(3) by discrimination in regard to hire or tenure of employ-
ment . . . to encourage or discourage membership in any labor
organization . .
Section 7 . insofar as relevant . states:
(Continued)
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired because it was of the opinion that he was unsuited by
reason of his personality and temperament to occupy the
position for which he was an applicant Respondent makes
the additional argument that its collective agreement with
the Union gives it the right to reject any applicant for
employment referred by the Union and that it exercised this
right in refusing to employ Jonas.
B. Preliminary Findings 5
I Respondent's operations
Respondent is a wholly owned subsidiary of Ene Sand
and Gravel Company (herein called Erie Sand) of which
Esco Dredge and Fill (herein called Esco) is a division.6
Respondent, Erie Sand, and Esco share common premises
in Erie, Pennsylvania.
As noted, respondent's business consists of dredging sand
from Lake Erie To do this respondent operates several
vessels, including the M/V Lakewood
Respondent's vessels are customarily away from port for
several days at a time. During these periods their crews,
which include crane operators, work and live in close
quarters
2. The relationship between respondent and its
affiliates with labor organizations
The crane operators on respondent's vessels are repre-
sented by the Union, with which respondent has had
contractual relations for about 35 years. Its current
collective agreement with the Union became effective on
April 1, 1968, and, by its terms, will remain in force until at
least March 31, 1971
Respondent also deals with other labor organizations
representing persons in its employ and has had contracts
with them for almost as long as it has had contracts with the
Union Like respondent, its affiliates are parties to
contracts with the Union and other labor organizations
covering their employees in appropriate categories.
3. Respondent's hiring practices
As Sidney Smith, respondent's president, testified, when
a crane operator is to be hired respondent "call [s] the
union for the man." This procedure is in accordance with
respondent's contract with the Union`7 which provides, in
this respect, that respondent "shall give the Union
forty-eight (48) hours notice of its need for workmen, and
within [this] period shall not hire persons not referred by
the Union." The contract also provides that respondent
"shall have the right to reject any applicant referred for
employment."
For its part, when the Union receives a request for an
employee it resorts to a list, maintained on a seniority basis,
Sec 7 Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection
5 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent's alleged unfair labor
practices and the conclusions to which they may give rise To the extent
that the contentions of the parties relate specifically to the findings made
of people who are out of work. Normally the Union refers
the man whose name heads the list to the requesting
employer. If that person is unwilling to accept the job in
question the next man on the list is referred.
4. Howard Jonas as a business representative of
the Union
Before 1966, Howard Jonas8 was a rank-and-file
member of the Union and worked as a journeyman heavy
equipment operator, sometimes serving as the Union's
steward. From August 1966 until about the end of February
1970 Jonas was a business representative of the Union. In
this capacity Jonas negotiated collective agreements,
policed and enforced such agreements, and prosecuted
grievances.
Jonas performed his duties as a business representative of
the Union with vigor and zeal. In this regard, Sidney Smith,
respondent's president, testified that while Jonas was the
Union's business representative he caused respondent
"more trouble than [it] ever had."
Illustrative of the aggressiveness with which Jonas acted
while he represented the Union and of the type of "trouble"
he caused are the following several incidents involving
respondent and Erie Sand, its parent corporation. In 1968
Jonas represented the Union in negotiating with respon-
dent for a collective-bargaining contract to replace one
which was about to terminate Because no agreement was
reached upon the expiration of that contract Jonas placed a
picket line at respondent's dock .9
In June 1969 Jonas caused a short work stoppage by
respondent's employees to protest a claimed misassignment
of work. Several months later Jonas once again placed a
picket line at respondent 's premises . This, because Jonas
was of the opinion that an officer of Erie Sand had reneged
on a promise to confer with him before Erie Sand, through
its Esco Division, started to perform a particular job.
Finally in this catalogue is a contract bargained out in 1969
by Jonas, on behalf of the Union, with Ene Sand in which
he was successful in obtaining the inclusion of improved
fringe benefits and working conditions as well as a
substantial wage increase.
Jonas' militancy as the Union's business representative
was not directed solely to respondent and its affiliates.
Jonas conducted himself in a similar manner toward other
employers with whom he dealt, and Smith, respondent's
president, was aware of this.
Based on his relationship with Jonas while he was the
Union's business representative Smith formed an opinion
as to Jonas. In Smith's view, as he testified, Jonas "seemed
to go out of his way to get the men stirred up . . was very
argumentative [and ] seemed to go out of his way to have a
problem."
here they will be treated here, although they may again be considered in
other contexts
e When appropriate, Erie Sand and Esco will be referred to collectively
as respondent's affiliates
7 G C Exh 2
" As noted, respondent 's refusal to hire Jonas constitutes the subject of
this proceeding
9 It will be remembered that respondent and Erie Sand share common
facilities
ERIE SAND STEAMSHIP COMPANY 65
C. Facts Concerning Respondent 's Alleged Unfair
Labor Practices
As earlier set forth, the complaint alleges that respon-
dent's refusal to hire Howard Jonas constituted unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act. The operative facts underlying these allegations are
uncomplicated and uncontroverted.
At the end of February 1970 Jonas resigned as business
representative of the Union. Following his resignation
Jonas reverted to his status as a rank-and-file member of
the Union and began, again, to work as a journeyman.
In April 1970 a position as crane operator on respon-
dent's vessel M/V Lakewood became vacant. In accordance
with the referral provisions of its contract with the Union
respondent requested the Union to furnish it with a man to
fill this job. At this time Jonas' name was on the Union's list
of people who were out of work and he was referred to
respondent by the Union.
Respondent, however, refused to hire Jonas. Jonas'
rejection by respondent was based, as Sidney Smith,
respondent's president, testified "in Part" because "in
connection with his duties representing the union" he
"caused trouble .. . on stopping jobs." Smith gave an
additional reason for respondent's refusal to hire Jonas;
namely, that he "didn't think [Jonas] was of the personality
or the temperment [sic] that should be on that vessel
working [and] living in confined quarters . . . where it's
necessary for a whole crew to get along together."
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1)
and (3) of the Act
Respondent's principal argument, as asserted at the
opening of the trial and amplified in its brief, is that it did
not hire Howard Jonas because it believed that his
personality and temperament were such as to make him
unsuitable for the vacant position it was seeking to fill.
Regardless of its justification, if this were the sole, actual
ground on which Jonas was refused employment, respon-
dent could not be faulted for exercising its business
judgment in this manner. N.L.R.B. v. McGahey, et al., etc.,
233 F.2d 406, 413 (C.A. 5),10
But Jonas' claimed unsuitability by reason of his
temperament and personality was not the only basis upon
which he was rejected when referred by the Union. As
Sidney Smith, respondent's president, testified in this
regard, respondent's refusal to hire Jonas was "in part"
connected "with his duties representing the union" which
were performed, I have found, in a vigorous, zealous, and
aggressive manner.
"It is now well established that a discharge motivated in
part by discriminatory reasons is unlawful, even though it
may otherwise be motivated by lawful reasons.tt The
10 Although McGahey and other cases cited below talk in terms of
discharge, the same principles apply, under Section 8(a)(3) of the Act, with
respect to hiring. Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 187,
191-193: Reliance Insurance Companies v. N.L.R.B., 415 F.2d 1, 6 (C.A.
8)*
" Film Inspection Service, Inc., 144 NLRB 1040, 1042.
Although the portion of, the contract here relied upon by respondent
appears earlier in this Decision. it will be again set forth for ready
question for determination is, therefore, whether a refusal
to employ a former business representative of a union
"motivated in part," as here, by his aggressiveness in that
office is discriminatory.
In West Texas Utilities Company, 108 NLRB 407, 413,
enfd. 218 F.2d 824 (C.A. 5), cert. denied 349 U.S. 953, the
Board answered this question in the affirmative. There the
Board said:
[W ]e believe . . . that the Respondent demanded the
nonemployment of [Business Agent] Ray because he
was an active official of the same union which had
organized the Respondent's employees . . . . It is clear
that the denial of employment to Ray constitutes
discrimination which discouraged membership and
activity in the Union, within the meaning of Section
8(a)(3) of the Act.. . .
This statement by the Board seems to be dispositive of
the issue here under discussion. I find, therefore, that
respondent's refusal to hire Jonas was discriminatorily
motivated and, hence, in violation of the Act.
Respondent defends its refusal to hire Jonas on another
front. The second defense line interposed by respondent is
that its denial of employment to Jonas was not an unfair
labor practice because its contract with the Union gave it
the right to reject Jonas upon his referral.12 Like
respondent's first position, this is also untenable.
The Board is empowered, in vindication of the public
interest, to bring to book perpetrators of unfair labor
practices 13 and to formulate and impose remedies which, as
stated in Section 10(c), "will effectuate the policies of [the]
Act." This power cannot be restricted by agreements
between private parties. N.L.R.B. v. Walt Disney Prod-
uctions, 146 F.2d 44,48 (C.A. 9), cert. denied 324 U.S. 877.
Accordingly, its contract with the Union is of no avail to
respondent insofar as its violative refusal to hire Jonas is
concerned. In sum, as the General Counsel aptly states on
brief, "respondent cannot hide behind [its] contract to
avoid its statutory obligations nor use it to justify an
unlawful act."
I conclude, therefore, that by refusing to hire Jonas
respondent engaged in an unfair labor practice within the
meaning of Section 8(a)(3) of the Act. I further conclude
that by the same conduct respondent engaged in an
independent unfair labor practice within the meaning of
Section 8(a)(1) of the Act. Waumbec Mills, Inc., 15 NLRB
37, 46, enfd. in this respect 114 F.2d 226 (C.A. 1).
IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent's unfair labor practices, as found above,
occurring in connection with its operations described in
section 1, above, have a close, intimate , and substantial
relationship to trade, traffic, and commerce among the
reference . It provides that respondent "shall have the right to reject any
applicant referred for employment."
13 Section 10(a) of the Act recites in pertinent part "The Board is
empowered ... to prevent any person from engaging in any unfair labor
practice (listed in section 8) affecting commerce." See also , in this respect,
Amalgamated Utility Workers, etc. v. Consolidated Edison Company, etc., 309
U.S. 261, 265.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act, my recommended Order will require respondent to
cease and desist therefrom and to take such affirmative
action as will effectuate the policies of the Act, including an
immediate offer of employment to Howard Jonas as a
crane operator on the M/V Lakewood Any backpay found
to be due to Jonas shall be computed in accordance with
the formula set forth in F. W Woolworth Company, 90
NLRB 289, and shall include interest in the amount and
manner provided for in Isis Plumbing & Heating Co, 138
NLRB 716.
Because unfair labor practices which result in the
deprivation of employment, as is the situation here, go "to
the very heart of the Act," 14 broad cease-and-desist
provisions will be included in my recommended Order.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to hire Howard Jonas because of the
vigor, zeal, and agressiveness with which he performed his
duties as a business representative of the Union, thereby
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7 of the Act,
respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By refusing to hire Howard Jonas because of the
vigor, zeal, and aggressiveness with which he performed his
duties as a business representative of the Union, thereby
discouraging membership in the Union, respondent has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices engaged in by respondent
as set forth in Conclusions of Law 3 and 4, above, affect
commerce within the meaning of Section 2(6) and (7) of the
Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 15
Respondent, Erie Sand Steamship Company, its officers,
agents, successors, and assigns, shall.
i4 NLRB v Entwistle Manufacturing Company, 120 F 2d 532, 536
(C A 4)
i'' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, recommendations, and recommended Order herein
shall as provided in Section 10248 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
1. Cease and desist from:
(a) Discouraging membership in International Union of
Operating Engineers, Local 66, AFL-CIO, or any other
labor organization, by discriminating in any manner
against employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, as amended, or to refrain
from any or all such activities, except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
in conformity with Section 8(a)(3) of said Act.
2 Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Offer to Howard Jonas immediate employment as a
crane operator on the vessel M/V Lakewood or, if thatjob
no longer exists, to a substantially equivalent position
without prejudice to any rights and privileges he might have
acquired had discrimination not been practiced against
him, and make Howard Jonas whole in the manner set forth
in the section of this Decision entitled "The Remedy" for
any loss of earnings he may have suffered by reason of the
discrimination practices against him.
(b) Notify Howard Jonas if presently serving in the
Armed Forces of the United States of his right to
employment as set forth above upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order
(d) Post at all its premises and docks, wherever located,
copies of the attached notice marked "Appendix." 16 Copies
of said notice, on forms provided by the Regional Director
for Region 6 of the National Labor Relations Board, after
being duly signed by respondent's authorized representa-
tive, shall be posted by respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days therafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify said Regional Director, in writing, within 20
all objections thereto shall he deemed waived for all purposes
is In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgement of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board"
ERIE SAND STEAMSHIP COMPANY 67
days from the receipt of this Decision, what steps have been zealous way in which he carried out his duties as
taken to comply herewith.17
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 6 , in writing, within 20 days from
the date of this Order , what steps respondent has taken to comply
herewith '
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice and we intend to carry out the order of the
Board, and abide by the following-
WE WILL NOT refuse to hire any person and WE WILL
NOI fire or layoff any person because he was, or is, a
business representative , officer, official , or steward of
International Union of Operating Engineers , Local 66,
AFL-CIO, or of any other union.
WL WILL NOT refuse to hire any person and WE WILL
NOI fire or layoff any person because of the way he
carried out, or carries out, his duties as business
representative , officer , official , or steward of Interna-
tional Union of Operating Engineers , Local 66,
AFL-CIO, or of any other union.
As it has been decided that we refused to hire
Howard Jonas as a crane operator on the M/V
Lakewood when he was dispatched to us by Internation-
al Union of Operating Engineers, Local 66, AFL-CIO,
because of the aggressive , vigorous , militant, and
business representative of that Union, We will offer
Howard Jonas immediate employment as a crane
operator on the M/V Lakewood
WE WILL pay Howard Jonas any wages lost by him
because we refused to hire him.
WE WILL NOT in any way interfere with , restrain, or
coerce you in the exercise of any rights guaranteed to
you by the National Labor Relations Act. In this
connection, WE WILL respect your rights to
self-organization , to form , join , or assist any union, to
bargain collectively through any union or representative
of your choice as to wages, hours of work, and any other
term or condition of employment. You also have the
right , which We will also respect , to refrain from doing
so
Dated By
ERIE SAND STEAMSHIP
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644--2977