General American Aerocoach

National Labor Relations Board - Board Decisions

Jun 9, 1950

90 N.L.R.B. 239 (N.L.R.B. 1950)

In the Matter of GENERAL AMERICAN AEROCOACH, MOTOR COACH D1VL-
sloe, GENERAL AMERICAN TRANSPORTATION CoaroRAIioN and RALPEr
H. LUNDEAN, ALL, AN INDIVIDUAL
In the Matter of GENERAL AMERICAN AEROCOACH, MOTOR COACH Dlvi-
SION, GENERAL. AMERICAN TRANSPORTATION CORPORATION and Rus
SELL B. HEATH, AN INDIVIDUAL
In the Matter of Local 714, INTERNATIONAL UNION, UNIc D AUTO-
MOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMER-
ICA, CIO and RALPH H. LUNDEWALL, AN INDIVIDUAL
In the Matter of LOCAL 714, INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMER-
ICA, CIO and RUSSELL B. HEATH, AN INDIVIDUAL
Cases Nos. 13-CA-139, 13-CA-144, 13-CB-35, and 13-CB-36.-
Decided June 9, 1950
DECISION AND ORDER
On January 12, 1950, Trial Examiner Josef L. Hektoen issued his
Intermediate Report in the above-entitled proceedings finding that
the Respondents hid engaged in and were engaging in certain unfair-
labor practices, and recommending that they cease and desist there-
-f rom and take certain affirmative action, as set forth in the copy of the.
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, together with supporting
briefs.
The Board 1 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
cases, and hereby adopts the findings, conclusions, and recommenda
tions of the Trial Examiner, with the following additions and modi-
fications :
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Houston and Murdock].
90 NLRB No. 36.
239
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner that the Respondent Com-
pany discriminatorily discharged Ralph H. Lundewall and Russell
B. Heath in violation of Section 8 (a) (3) and, derivatively, Section
S (a) (1) of the amended Act, and, that by causing such discharges,
the Respondent Union violated Section 8 (b) (2). We further find
that this action of the Respondent Union was violative of Section 8
(b) (1) (A).
The record shows that on August 23, 1948, the Respondents entered
into a. union-shop agreement, effective for 2 years front May 31, 1948,
to May 31, 1950,2 and that on August 31, 1948, the Respondent Union
requested the discharge of employees Lundewall and Heath princi-
pally because of their alleged delinquencies in dues and assessments
for periods prior to the current contract.3 When the Respondent,
Company protested such request, the Respondent Union, on Septem-
ber 8, 1948, threatened economic measures if action was not taken by
the Company, and, on September 10, 1948, the Company effected the.
discharge of Lundewall and Heath.
Assuming, without passing upon, the validity of the union-shop
agreement between the Respondents," the retroactive application of
such clause by the Respondent Company was clearly without the pro-
tection of the proviso to Section 8 (a) (3) and constituted discrimina-
tion violative of Sections 8 (a) (3) and 8 (a) (1) of the amended Act.'
By thus causing the Respondent Company to discharge Lundewall
and Heath in violation of Section 8 (a) (3), the Respondent Union
violated Section 8 (b) (2) and 8 (b). (1) (A) of the amended Act.s
2. We also agree with the Trial Examiner that, by other conduct,
the Respondent Union violated Section 8 (b) (1) (A).
We rely in this connection on: (a) The statement by Nickolich, the
Respondent Union's secretary-treasurer, to Lundewall.early in May
1948 that because of the latter's alleged dues delinquency, lie was not
2 On June 29, 194S, the Respondent Union was authorized, after an election held pur-
suant to Section 9 (e) (1) of the amended Act, to execute a union-shop agreement.
3 Lundewall's alleged delinquency consisted of dues from September 1946 through April
1948, plus assessments and readmission fee-a total of $32.50. Heath's delinquency
amounted to $21, covering dues from July 1.947 through June 1948, assessments, and read-
mission fee. As shown in the Intermediate Report, no union-shop contract was even in
effect during the period from April 14 to June 16, 1947, nor is it asserted that such a
contract was operative from April 28 to May 31, 1948.
The Trial Examiner did not find that terms of the contract, per se, were unlawful,
and no exceptions have been filed to the failure so to find.
G Colonie Fibre Co. v. N. L. R. B., 163 F. 2d 65 (C. A. 2, 1947), enfg. 69 NLRB 589 and
71 NLRB 354 ; Selig Manufacturing Company, Inc., 79 NLRB 11.44 ; Hamilton-Sehel &
Walsh Shoe Co., 80 NLRB 1496. The contention of the Respondent Company that it
should not be held liable herein because it acted under intimidation by the Respondent
Union is without merit as a matter of law. Lloyd A. Fry Roofing Company, 89 NLRB 845.
Lloyd A. Fry Roofing Company, supra. footnote 5 ; Union Starch & Refining Co., 87
NLRB 779; Clara-Val Packing Co., 87 NLRB 703.
GENERAL AMERICAN AEROCOACH 241.
in good standing in the Respondent Union, followed by Nickolich's
statement the next day to Lundewall that if the latter didn't pay the
delinquency, he would be suspended from the Union and discharged,
from the Company, and Nickolich's subsequent letter of May 19, 1948,
to Lundewall threatening expulsion from the Union for failure to pay
the delinquency; (b) the June 1.948 statement' of Union steward
Minder to Heath that the latter would be discharged if he didn't pay
his delinquency; (c) Nickolich's August 1948 statement to Heath that
he wanted the latter's job; and (d) Nickolich's letters of August 24,
1.948, to the Respondent Company, copies of which were sent to Lunde-
wall and Heath, respectively, stating that Lundewall and Heath had
been suspended for failure to pay their alleged delinquencies.8
ORDER
Upon the entire record i n the cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent Company, General American Aerocoach, Motor
Coach Division , General American Transportation Corporation, East
Chicago, Indiana , its officers , agents, successors , and assigns , shall:
a. Cease and desist from :
(1) Encouraging membership in Local 714 , International Union,
United Automobile , Aircraft & Agricultural Implement Workers of
America, CIO , or in any other labor organization of its employees, by
discharging any of its employees or discriminating in any other man-
ner in respect to their hire and tenure of employment, or any terms or
conditions of employment , except to the extent authorized by Section
8 (a) (3) of the amended Act;
(2) In any like or related manner interfering with, restraining,
or coercing its employees in the right to refrain from exercising the
rights guaranteed them by Section 7 of the amended 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 amended Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Offer to Ralph H. Luulewall and Russell B. Heath immediate
and full reinstatement to their former or substantially equivalent po-
The Trial Examiner erroneously found that this statement was made in April 1948.
8 Sca,npraje, Incorporated, 82 NLRB 892: Smith Cabinet Manufacturing Company,
Inc., 81 NLRB 8S6; ef. J. S. Abercrombie Company, 83 NLRB 524.
903847-51-vol. 90-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sitions, without prejudice ' to their seniority or other rights and
privileges;
(2) Post at its plant at East Chicago, Indiana, copies of the notice
attached hereto as Appendix A.° Copies of said notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall, after
being duly signed by the Respondent Company's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for a period of at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Company to insure that said notices are not altered, defaced,
or covered by any other material;
(3) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent Company has taken to comply herewith.
2. The Respondent Union, Local 714, International Union, United
Automobile, Aircraft R Agricultural Implement Workers of America,
(10, its officers, representatives, and agents, shall :
a. Cease and desist from :
(1) Restraining or coercing employees of General American Aero-
coach, Motor Coach Division, General American Transportation
Corporation, .its successors, or assigns, in the exercise of their right
to refrain from any or all of the concerted activities guaranteed by
Section 7 of the amended Act, except to the extent that such rights may
be^affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized by Section 8 (a) (3)
of the amended Act.
(2) In any manner causing or attempting to cause General Ameri-
can Aerocoach, Motor Coach Division, General American Transporta-
tion Corporation, its officers, agents, successors, or assigns, to discrimi-
nate against its employees in violation of Section 8 (a) (3) of the
amended Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Notify, in writing, General American Aerocoach, Motor Coach
Division, General American Transportation Corporation, that it with-
draws its objections to the employment of Ralph H. Lundewall and
Russell B. Heath by the Respondent Company and requests it to offer
them immediate and full reinstatement to their former or substanti-
ally equivalent positions, without prejudice to their seniority or other
rights and privileges;
n
" In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall. be inserted before the words, "A Decision and Order," the words, "A Decree of
the United States Court of Appeals enforcing."
GENERAL AMERICAN AEROCOACH 243
(2) Post in conspicuous places in its business office, and where
notices to its members are customarily posted, copies of the notice
attached hereto as Appendix B.10 Copies of said notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an official representative of the Respondent
Union, be posted by it immediately upon receipt thereof and be main-
tained by it for a period of at least sixty ( 60) consecutive days there-
after. Reasonable steps shall be taken by it to insure that said notices
are not altered , defaced, or covered by any other material;
(3) Mail to the Regional Director for the Thirteenth Region signed
copies of the notice attached hereto as Appendix B, for posting, the
Employer willing, at the East Chicago , Indiana, plant of General
American Aerocoach , Motor Coach Division , General American
Transportation Corporation , in places where notices to its employees
are customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Thirteenth Region , shall, after being signed
as provided in paragraph 2 (b) (2) of this Order, be forthwith re-
turned to said Regional Director for said posting ;
(4) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10 ) days from the date of this Order, what steps
the .Respondent Union has taken to comply herewith.
3. General American Aerocoach , Motor Coach Division, General
American Transportation Corporation , its officers , agents, successors,
and assigns, and Local 714 , International Union , United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO, its
officers , representatives , and agents , shall jointly and severally, make.
whole Ralph H. Lundewall and Russell B. Heath, for any loss of
pay they may have suffered because of the discrimination against them,
by payment to each of them of a sum of money equal to the amount
each would normally have earned as wages from September 10, 1948,
the date of the discrimination , to the date of the offer of reinstatement,
or to five days after the date on which the Respondent Union serves
upon the Respondent Company the written notice as set forth in para-
graph 2 ( b) (1.) of this Order, whichever shall first occur, less the
net earnings of each during said period . The Respondent Company
shall make them whole for any loss of pay they may have suffered
because of the discrimination against them , by payment to each of them
of a sum of money each would normally have earned as wages from
five days after the date upon which it is served by the Respondent
Union with the written notice required by paragraph 2 (b) (1) of this
'° In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order" the words, "A Decree of
the United States Court of Appeals enforcing."
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, to the date of the offer of reinstatement, less the net earnings
of each during said period.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relation
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in LOCAL 714, INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO, or in any other labor
organization of our employees, by discharging any of our em-
ployees or discriminating in any other manner in regard to their
hire or tenure of employment, or any terms or conditions of em-
ployment, except to the extent authorized by Section 8 (a) (3)
of the amended Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the right to refrain from any
or all of the concerted activities guaranteed them by Section 7
of the amended Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the amended Act.
AVE WILL OFFER to Ralph H. Lundewall and Russell B. Heath
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights or privileges previously enjoyed, and WE WILL make them
whole for any loss of pay suffered as a result of the discrimina-
tion against them.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing 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 amended Act.
GENERAL AMERICAN AEROCOACI-J, MOTOR COACH DIVISION,
GENERAL AMERICAN TRANSPORTATION CORPORATION,
Employer.
By ------------------------------------------------------------
(Representative ) ( Title)
Dated --------------------
GENERAL AMERICAN A•EROCO'ACH 245
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
APPENDIX B
NoTiCi, TO. ALL MEMBERS or LOCAL 714, INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS or
AMERICA, CIO, AND TO ALL EMPLOYEES or GENERAL AMERICAN AERO-
COACH, MOTOR COACH DIVISION, GENERAL AMERICAN TRANSPORTA-
TION CORPORATION
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 restrain or coerce employees of GENERAL AMERI-
CAN AEROCOACII, MOTOR COACH DIVISION, GENERAL AMERICAN
TRANSPORTATION CORPORATION , its successors or assigns, in the ex-
ercise of their right to refrain from any or all of the concerted
activities guaranteed to them by Section 7 of the amended Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the
amended Act.
AVE WILL NOT in any manner cause or attempt to cause GENERAL
AMERICAN AEROCOACH, MOTOR COACT[ DIA IsioN, GENERAL AMERI-
CAN TRANSPORTATION CORPORAT7oN, its officers, agents, successors,
or assigns, to discriminate against its employees in violation of
Section 8 (a) (3) of the amended Act.
WE WILL make Ralph H. Lundewalland-Russell B. Heath whole
for any loss of pay suffered because of the discrimination against
them.
LoCAL 714, INTERNATIONAL UNION, UNION AUTOMOBILE,
AIRCRAFT &• AGRICULTURAL IMELEMENT WORKERS or AMERICA, CIO,
Labor Organi2ation.
By -----------------------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for sixty (60) clays from the date
hereof and must not be altered, defaced, or covered by any other
Inateria.l.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE ' REPORT
Jlr. Irving 31. Friedman., for the General Counsel.
Seyfarth., Shaw and Fairweather, by Messrs. Lee C. Shaw and Charles 0.
Preston, of Chicago, Ill., for the Respondent Company.
Mr. Max Raskin, of Milwaukee, Wis., JIr. Harold A. Katz, of Chicago, Ill., and
Mr. Paul Dobyns, of Hammond, Ind., for the Respondent Union.
STATE11fENT OF THE CASE
Upon charges duly filed by Ralph H. Lundewall and Russell B. Health, indi-
•:iduals, the General Counsel of the National Labor Relations Board, herein
respectively called the General Counsel' and the Board, by the Regional Director
for the Thirteenth Region (Chicago, Illinois), issued his consolidated complaint
dated August 11, 1.949, against General American Aerocoach, Motor Coach Divi-
sion, General American Transportation Corporation, East Chicago, Indiana,
herein called the Company and Local 714, International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, CIO, herein
called the Union, and collectively called the Respondents, alleging that the Com-
pany and the Union had engaged in and.were engaging in unfair labor practices,
within the meaning of Section 8 (a) (1) and (3) and Section S (b) (1) and (2)
respectively, and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, as amended, 61. Stat. 1.36, herein called the Act. Copies of the charges
and consolidated complaint, accompanied by notice of hearing thereon, were
duly served upon the parties?
With respect to the unfair labor practices the consolidated complaint alleged
in substance that: (1) The Company, on or about September 1.0, 1948, discharged
Ralph H. Lundewall and Russell B. Heath, and thereafter refused to reinstate
them, because they, and each of them, refused to join, assist, and pay exactions
to the Respondent Union; that it thereby encouraged membership in the Re-
spondent Union, in violation of Section 8 (a) (3) of the Act; and that it thereby
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed them in Section 7 of the Act; and (2) that the Union, on or about
April 15, 1948, and thereafter, by threatening employees of the Company, par-
ticularly those who filed the charges herein, that said Union would deny or
terminate their membership therein for reasons other than their failure to
tender periodic dues and initiation fees, and by further threatening them that
it would cause or attempt- said Company to discharge them in violation of
Section 8 (a) (3) of the Act, acted in contravention of the provisions of Section
8 (b) (1) (A) of the Act; by attempting to cause on August 24, and causing on
September 10, 1948, the Company to discharge them in violation of Section 8
(a) (3) -of the Act, the Union engaged in unfair labor practices, within the mean-
ing of Section 8 (b) (2) of the Act; and (3) by such actions, the Respondents
were engaging in unfair labor partices affecting commerce, within the meaning
of Section 2 (6) and (7) of the Act.
Thereafter the Respondents filed their separate answers admitting certain
allegations of- the complaint, but denying the commission of any unfair labor
practices.
This term includes his representative at the hearing.
' On August Iii, 1949, the Regional Director issued his order postponing the hearing
from August 23 to August 24, 1949.
GENERAL AMERICAN AEROCO'ACH 247
Pursuant to notice, a hearing was held on August 24, 1949. at Chicago, Illinois,
before the undersigned, Josef L. Hektoen, the Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel, the Company, and the
Union were represented by counsel and participated in the hearing. All parties
were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues. Although oral-argu-
ment was waived, all parties have submitted briefs.
Upon the entire record in the case, the undersigned makes the following:
FINDINGS Or FACT
I. THE BUSINESS OF THE COMPANY
The Company, General American Aerocoach, Motor Coach Division , General
American Transportation Corporation, East Chicago , Indiana, is a Delaware
corporation maintaining its principal place of business in Chicago , Illinois. In
East Chicago, Indiana , it operates a plant, the only one herein concerned, where
it is engaged in the manufacture of motor coaches . During 1948, it there bought
raw materials valued in excess of $500 ,000, more than 75 percent thereof being
shipped to the East Chicago plant from points outside the State of Indiana.
During the same period , it sold finished products valued in excess of $1,000,000,
more than 75 percent thereof being shipped by it to points outside the State of
Indiana.
The answers of the Respondents admit , and the undersigned finds, that the
Company is engaged in commerce , within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 714, International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is a labor organization admitting to
membei;ship employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
The first of the contracts governing the relation between the Respondents and
relevant herein , was entered into on April 26 , and dated April 15, 1946 . It con-
tained a 60-day union -shop clause and a 60-day automatic renewal clause. it
was terminated on April 14 , 1947, by notice of the Union . On June 16, 1947, a
second contract was entered into containing similar provisions . On April 28, 1948,
it was similarly terminated.
On June 29 , 1948, the Regional Director issued his certification that the Union
was authorized to make a union-shop agreement with the Company pursuant to
the provisions of the Act, as amended!
On August 23, a third contract dated May 31, 1948, was entered into by the
Respondents . It provided that old and new employees should be and remain
members in good standing of the Respondent Union, new employees having 30
days in which to attain good standing , and for dues deductions upon written
authorization . It furtlier-provided that, while employees who lost their member-
ship in accordance with the provisions of the union bylaws and constitution
were not to be retained in the employ of the Company, the latter would neverthe-
Case No. 13-UA-.1183.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less not be required to discharge such employees where that action would result
in violation by it of any provision of the Act.
Ralph H. Lundewall was employed by the Company on January 11, 1944. He
resigned on October 29, 1946, and "got another job." On February 2, 1945, he
returned to employment with the Company as a new employee and his seniority
began as of that date.
Russell B . Heath was employed by the Company on May 27, 194(1, laid off on
June 30, 1947, and having failed to respond to a notice of recall, was terminated
on January 30, 1948. On April 22, 1945, he was hired as a new employee and his
.seniority began as of that (late.
Both Lundewall and Heath were members in good standing of the Union when
their employment ceased, but failed to take withdrawal cards. The record is
silent as to any work they performed or where or for whom they did so during
their absences from the Company's plant.'
About 60 days after his return, Lundewall applied for union membership and
authorized dues deductions. Early in May 1948, Milo A Nickolich, the Union's
financial secretary-treasurer, informed him that because of an alleged clues
delinquency incurred during his absence from the plant, he was not in good
standing in the Union. On May 19, Nickolich wrote Lundewall that his delin-
quency consisted of dues of $1.50 per month from September 1946, through April
1948, two assessments of $1 each, and a $2 readmission fee ; that with credit for
$3.50 deducted after his return to work, the total was $29; and that failure to
remit that sum would result in expulsion . On May 24 and August 10, Lundewall
wrote Raymond H. Berndt, the Union's regional director, asking for explana-
tion. On August 17, the latter answered saying that Lundewall's failure to take
a withdrawal card at the time of his resignation was responsible for his delin-
quency. Lundewall did not remit.
About 60 clays after his return, Heath also applied for union membership and
authorized dues deductions. At, or shortly before this time, Steward Waldo B.
Minder informed Heath that he was delinquent in the amount of $21' on account
of his failure to obtain a withdrawal card or out-of-work slip and that if lie slid
not remit this amount, he would be discharged from his job.'
On August 24, Nickolich wrote the Respondent Company separate letters re-
specting Lundewall and Heath, stating that both had been suspended from mem-
bership for failure to pay dues and assessments, and setting forth of what their
respective claimed delinquencies consisted and the amount of each. A copy of
the applicable letter was sent to each of the charging parties.
On August 26, R. H. Evans, company general superintendent, replied stating
that because the employees in question had returned to work as new employees,
lie believed the union-shop provisions of the contract to be inapplicable.'
On August 31, Nickolich wrote Evans stating that because neither Lundewall
nor Heath had made efforts to be reinstated, the Union requested that they be
discharged pursuant to the terms of the contract.
4 The evidence indicates that Heath spent some or all of his absence in a hospital.
5 The evidence reveals that this amount was arrived as follows : clues of $1.50 per month
from July 1947. through June 1948 ; assessment. $1 ; and readmission fee. $2.
Heath credibly testified without denial and the undersigned finds, that (luring August,
Nickolich refused to accept his tendered part-payment on account of his stated delinquency,
informed him that lie did not want Heath's money. but rather his job. and, after speaking
to officers of the Union stated that it was union law. Heath thereafter spoke to Union
President Ross Fulk and received substantially the same reply. Heath slid not remit.
I It will be remembered that the 1948 contract was entered into on August 23.
GENERAL AMERICAN AEROCO'ACH 249
On September 3, representatives of the Respondents conducted a grievance
procedure respecting the employees involved. The Company's position remained
unchanged. An appeal was taken by the Union to the last step in the grievance
procedure.
On September S. representatives of the parties met for the purpose of taking
the final step. 1lugh M. Holmes, industrial relations mianager of the Company,
credibly testified without denial and the undersigned finds, that he restated the
position of the Company to the effect that: Lundewall and Heath were new
employees and that it refused to discharge them on account of unpaid dues
accumulated when they were not working for the Company, that International
Representative 1'. L. Burgoyne, of the Union. then stated that the Union's internal
affairs were of no concern of the Company, which was, in any event indemnified
under the terms of the contract. that the Union was pushing the two cases because
it ha'l collected dues from other employees under similar circumstances, that
the Company, by refusing to follow its requests to discharge was laying itself
open to civil suit and faced econonic action by the Union, and that the Union
refused to arbitrate the matter.
Because Holmnes. as is hereby found, had good reason to fear that the Union
would strike should the Company fail to do its bidding,' and because lie had
orders from Company executives to avoid a strike at all costs, the plant being
then engaged in rehabilitating a large number of busses, he reversed the Com-
pany's position, oil tine same day wrote accordingly to Burgoyne, and on Septem-
ber 10, 1918, discharged Lunclewall and Heath."
I.I. Concluding findings
1. Contentions of the parties
The General Counsel's position is that the discharges occurred during a pro-
tected period inasmuch as 30 clays had not elapsed between the execution of the
1948 contract on August 23, and the date of the discharges. September 10. He
further contends that no contract was in effect during the periods April 14-June
16, 1947, and April 28-August 23, 1948. Thus the Union demanded dues of Lunde-
wall, April-June 1947, and of Heath, April-June 1948, both without contractual
warrant therefor. Further, that, the Union required of Lundewall and Heath,
even assuming that it was entitled to require union membership at the time,
conditions more onerous than those obtaining in the cases of new employees ; and
that by the April 1948, statement of Steward Minder to Heath that he would be
discharged for his failure to remit: Nickolich's August 1948. statement to Heath
that lie wanted his job; Nickolich's May 19, 1948, letter to Lundewall; Nicko-
lich's letters of August 24, 1948, to the Company, with copies to Lunclewall and
Heath, constituted violations of Section 8 (b) (1) (A) ; that the Company, by
acquiescing in the Union's demands, acted in violation of Section 8 (a) (1) and
(3) of the Act, and the Union by attempting and causing it to do so. acted in
violation of Section 8 (b) (2).
Counsel for the Company, while agreeing in large part with the position of
the General Counsel, insist that because it made the discharges under duress
8 Hoboes credibly testified without denial and the undersigned finds, that at about the
time when the Union served its February it, 1940, 60-day notice of desire to modify the 1947
contract, International Representative Pat Murphy informed him that the Union considered
it a notice of termination because it did not wish to be bound by the then contract's no-
strike provision Glaring negotiations for the new 1948 contract.
"Neither had had a union hearing or trial.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a strike threat, it should not be found guilty of any unfair labor practices,
snd that the decision in the Newman case 10 holding the contrary and that back
pay may be assessed jointly and severally against the Union and the Company,
is not a proper interpretation of the Act by the Board.
.Counsel for the Union, on the other hand, state that because Lundewall and
.Heath neglected to take withdrawal cards from the Union when their employment
teased, they became liable for dues and assessments during their absences from
the plant." They further state that, during their absences, the Union continued
to press for Lundewall's and Heath's advantage in the matter of wages and con-
ditions of employment and that when they returned, each had benefitted materially
s. a result of the Union's continuing incumbency and activity. Further that, on
no account should the Union be found to have acted in violation of the provisions
of Section 8 (b) (1) (A) because it at all times acted within the protection of
the proviso thereto ; 12 and finally, that Heath, upon his return, failed to tender
periodic dues and initiation fees when due by delaying his application for mem-
bership until (37 days after his reemployment.
2. Findings
It seems clear, and it is found that, but for their failure to take out withdrawal
cards, neither Lundewall nor Heath would have run afoul of the Union 13 A
literal reading of the quoted provisions of the Union constitution reveals that
the taking of a withdrawal' card is permissive, rather than mandatory. The
requirement that a member changing from the jurisdiction of one local to another
"shall be required to transfer forthwith" may be an exception, but in the absence
of evidence as to what work, and for whom, the charging parties performed
during their absence from the Company's plant, the matter is in any event not
of moment. The Union's contention that they became indebted to it because
it continued to work for their interests while they were away, since it assumes,
without evidence, that they intended to return to work for the Company when
they left, must be and is found to be without merit.
It follows that under the circumstances found above, the Union's action in.
insisting that Lundewall and Heath pay past dues, assessments," and reinstate-
ment fees upon their being hired as new employees by the Company, and causing
the Company to discharge them for their failure to do so, was clearly violative
10If. Milton Newman, an-individual d/b/a H. H. Newman, 85 NLRB 725, 24 LRR
1463 (decided August 18, 1949).
.
11 Counsel quotes the following from the applicable union constitution as controlling:
"Any member in good standing leaving the jurisdiction of the Internatonal Union is
entitled to an honorable withdrawal card. Any member leaving the jurisdiction of a
Local Union to work under tie jurisdiction of another Local Union shall be required
to transfer forthwith. . . ." (Section 3, Article 17.) And, "A member shall be entitled
to a withdrawal card provided he shall have his dues paid up to and including the
current month, or out-of-work receipts, and there are. no charges or debts owed to the
Local Union or assessments pending against him." (Section 4, Article 17.)
12 "Provided that this paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or retention of membership
therein. . . .
13 No mention of delay in applying for membership was made before the hearing.
Furthermore, the evidence shows that slight delays beyond the period stipulated were
common. It is therefore found that the Union's contention with reference to delay
is without merit.
11 Although the undersigned is not aware that the question has been decided by the
Board or the courts, a close reading of the Act indicates that discharge under a union-
shop contract for any reason other than failure to pay "periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining membership " is illegal.
GENERAL AMERICAN AEROCOACH 251
of Section 8 (b) (2) of the Act." It is so found. It also follows, and is
hereby found, that the Company, by discharging them, acted in violation of
Section 8 (a) (1) and (3) of the Act. The Company's contention that it acted
only under duress, is found to be without merit."
The April 1948, statement of Steward Sunder to Heath that he would be
discharged if he did not pay his delinquency, Nickolich's May 1948, statement
to Lundewall that for the same reason he was not in good standing, his May 19
letter to Lundewall threatening expulsion from the. Union, his August 1948,
statement to Heath that he wanted the latter's job, and'-his letters of August 24,
1948, stating that Lundewall and Heath had been suspended from the Union for
failure to pa34 their alleged delinquencies, amounted; in the opinion of the under-
signed. under all of the circumstances revealed in the record, to threatened
loss of-employment for Lundewall and Heath and were calculated to coerce them
into maintaining their good standing in the Union, in violation of their rights
under Section 7 of the Act to refrain from such activities. It is found that the
Union thereby acted in violation of the provisions of Section 8 (b) (1) (Aj of
the Act."
IV.,THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Respondent Company described in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company has discriminated in regard to the hire and
tenure of employment of Ralph H. Lundewall and Russell B. Heath, it will be
recommended that it offer them immediate and full reinstatement to their
former or substantially equivalent positions" without prejudice to their
seniority and other rights and privileges.
Having further found that the Union has caused the Respondent Company to
so discriminate in regard to the hire and tenure and employment of Ralph H.
Lundewall and Russell B. Heath, it will be recommended that. the Union notify
the Company, in writing, that it withdraws its objections to their -employment
and that it requests the Company to offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges.
" Id.arado Mining Coni.pany, 77 NLRB, 392; Colonic Fibre Company v. N. L. R. B.
163 F. 2d 65 (C. A. 2). ..
See the Newman..case (ftn. 10 above) and cases.. therein cited in ftn. 14.
See the Newman case, above.
is In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent-position" is intended-to mean "former position, wher-
ever possible. but'if such position is no longer in existence,.-then. to a substantially equiva-
lent position." See The Chase National Bank of the City of New York, San- Joan, Puerto
Rico, Branch, 65 NLRB 527.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be recommended that the Respondents jointly and severally10 make
Ralph H. Lundewall and Russell B. Heath whole for any loss of pay they may
have suffered by reason of the discrimination against them,.by the payment to
each of them of a sum of money equal to the amount each would normally have
earned as wages front the dates of the discrimination against them to the dates
of the offers of reinstatement, less the net earnings of each during such period.20
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned wakes the following:
CONCLUSIONS OF LAW
I. Local 714, International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is ar labor organization, within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of efttployment of
Ralph H. Lundewall and Russell B. Heath, the Respondent Company has ell•
gaged in and is engaging in unfair labor practices, within the meaning of
Section S (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (a) (1) of the Act.
4. By causing the Respondent. Company to discriminate in regard to the hire
and tenure of employment of Ralph H. Lundewall and Russell B. Heath in viola-
tion of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and
is engaging in unfair labor practices, within the meaning of Section S (b) (2)
of the Act.
5. By restraining and coercing employees of the Respondent Company in the
exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act, the Respondent Union has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (b) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair practices aiffecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that:
1. The Respondent Company, General American Aerocoach, Motor Coach Divi-
sion, General American Transportation Corporation, East Chicago, Indiana, its
officers, agents, successors, and assigns, shall:
a. Cease and desist from:
(1.) Encouraging membership in Local 714, International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, CIO, or
in any other labor organization of its employees by discharging ally of its em-
ployees or discriminating in any other manner in respect to their hire and tenure
of employment, or any terms or conditions of employment;
(2) In any like or related manner interfering with, restraining, or coercing
its employees in the right to refrain from exercising the rights guaranteed them
19 See the Nemntan case, above.
20 Crossett Lumber Co., 8 NLRB 440.
GENERAL AMERICAN AEROCO'ACH 253
in Section 7 of the Act, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which it is found will effectuate the
policies of the Act :
(1) Post at its plant at East Chicago, Indiana, or at such places as notices
to its employees are customarily posted, copies of the notice attached hereto
marked Appendix A. Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by it, be
posted by it immediately upon receipt thereof and maintained by it for at least
sixty (60) consecutive days thereafter in conspicuous places, including all places
where, notices to its employees are customarily posted. Reasonable steps shall
be taken by it to insure that said notices are not altered, defaced, or covered
by any other material ;
(2) Offer to Ralph I-1. Lundewall and Russell B. Heath immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges;
(3) Notify the RegionaLDirector for the Thirteenth Region, in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps it has taken to comply with these recommendations.
2. The Respondent Union, local 714, International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO, its officers, repre-
sentatives and agents, shall:
a. Cease and desist from
(1) Requiring, instructing, or inducing General American Aerocoach, Motor
Coach Division, General American Transportation Corporation, its officers,
agents, successors, or assigns, to discharge employees because they are not
members in good standing in Local 714, International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO, except in accord-
ance with Section 8 (a) (3) of the Act;
(2) In any other manner causing or attempting to cause General American
Aerocoach, Motor Coach Division, General American Transportation Corpora-
tion, its otlicers, agents, successors, or assigns, to discriminate against its em-
ployees in violation of Section S (a) (3) of the Act;
(3) Restraining or coercing employees of General American Aerocoach, Motor
Coach Division, General American Transportation Company, its successors or
assigns, in the exercise of their right to refrain from any or all of the concerted
activities guaranteed by Section 7 of the Act.
b. Take the following affirmative action, which it found will effectuate the
policies of the Act :
(1) Notify, in writing, General American Aerocoach, Motor Coach Division,
General American Transportation Corporation, that it withdraws its objections
to the employment of Ralph H. Lundewall and Russell B. Heath by the Respond-
ent Company and requests it to offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges;,
(2) Post in conspicuous places in its business office, or such places as notices to
its members are customarily posted, copies of the notice attached hereto and
marked Appendix B. Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after having been duly signed by
official representatives of Local 714, International Union, United Automobile,
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aircraft & Agricultural Implement Workers of America, CIO, be posted by it
immediately upon receipt thereof and maintained by it for a period of at least
sixty (60) consecutive days thereafter. Reasonable steps shall be taken by it
to insure that said notices are not altered, defaced, or covered by any other
material;
(3) Mail to the Regional Director for the Thirteenth Region signed copies
of the notice attached hereto as Appendix B, for posting, the Employer willing,
at the plant of Genera] American Aerocoach, 1\Iotor Coach Division, General
American Transportation Corporation, in places where notices "are customarily
.posted. Copies of said notice to be furnished by the Regional Director for the
Thirteenth Region, shall, after having been signed as provided in paragraph 2
(b) (2) of these Recommendations, be forthwith returned to said Regional
Director for said posting;
(4) Notify the Regional Director for the Thirteenth Region, in writing, within
twenty (20) days from the date of this Intermediate Report, what steps it has
taken to comply with these Recommendations.
3, General American Aerocoach, Motor Conch Division, General American
Transportation Corporation, its officers, agents, successors, and assigns, and
Local 714, International Union, United Automobile, Aircraft & Agricultural Im-
plement Workers of America, CIO, its officers, representatives, and agents, shall
jointly and severally, make whole Ralph IT. Lundewall and Russell B. Heath for
any loss of pay they may have suffered because of the discrimination against
them, by payment to each of them of a sum of money equal to the amount each
would normally have earned as wages from September 10, 1.945, the date of the
discrimination to the date of the offer of reinstatement, or to the date on which
the Respondent Union serves upon the Respondent Company the written notice
as set forth in Section 2 (b) (1) of these Recommendations, whichever shall first
occur, less the net earnings of each during said period. The Respondent Com-
pany shall make them whole for any loss of pay they may have suffered because
of the discrimination against them, by payment to each of them of a sum of
money each would normally have earned as wages from the date upon which it is
served by the Respondent Union with the written notice required by Section 2
(b) (1) of the Recommendations, to the date of the offer of reinstatement, less
the net earnings of each during said period.
It is further recommended that unless the Respondents, and each of them, shall
within twenty (20) days from the receipt of this Intermediate Report, notify said
Regional Director in writing that they will comply with the foregoing recommen-
dations, the Board issue an order requiring said Respondents to take the action
aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date of
service of the order transferring the case to the Board, pursuant to Section 203.45
of said Rules and Regulations, file with the Board, Washington 25, D. C., an
original and six copies of a statement in writing setting forth such exceptions to
the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon together with the original and six copies of a brief in support thereof ;
and any party may,.within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties.' State-
ments of exceptions and briefs shall designate by precise citation the portions of
GENERAL AMERICAN AEROCOACH 255
the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46, should any party desire permission
to argue orally before the Board, request therefor must be made in writing to
the board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board, and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 12th day of January 1950.
JOSEF L. HEKTOEN,
Trial E.xamniner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in LOCAL 714, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & ACRI.CULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, or in any other labor organization of our employees by dis-
criminatorily discharging any of our employees or discriminating in any
other manner in regard to their hire or tenure of employment, or any terms or
conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the right to refrain from any or all of the concerted activities
guaranteed them by Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of the
Act.
WE WILL OFFER to Ralph H. Lundewall and Russell.B. Heath immediate and
full reinstatement to their former or substantial equivalent positions without
prejudice to their seniority.or other rights.or privileges, and wE WILL make
them and each of them whole for any loss of pay they suffered as a result of
the discrimination against them.
All of our employees are free to become, remain, or to refrain from becoming
or remaining, members in good standing 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 amended Act.
GENERAL AMERICAN AEROCOACH, MOTOR COACH DIVISION,
GENERAL AMERICAN TRANSPORTATION CORPORATION, .
Employer.
By -------------------------------- ---------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To ALT MEMBERS OF LOCAL 71.4, 1NTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, AND TO ALL
EMPLOYEES OF GENERAL AMERICAN AEIIOCOACH, MOTOR COACH DIVISION, GENERAL
AMERICAN TRANSPORTATION CORPORATION
Pursuant to the recommendations of a Trial Examiner 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 require, instruct, or induce GENERAL AMERICAN AEROCOACH,
MOTOR, COACH DIVISION, GI:NI:RAT; AMERICAN TRANSPORTATION CORPORATION, to
discharge employees or in any other manner discriminate against them be-
cause-they are not members in good standing in LOCAL 71.4, INTERNATIONAL
UNION, UNITIm AUTObid-.',ILI-:, AIRCRAFT & AGRICULTUIIAL IMPLEMENT A ORK!:RS
OF AMERICA, CIO, except in accordance with Section S (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause GENERAL
AMERICAN AEROCO ACH, MOTOR. COACH DIVISION, GENERAL AMERICAN TRANS-
PORTA'IION CORPORATION, its Ofllcers, agents, successors, Or assigns, to dis-
criminate against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of GENERAL AMERICAN AERO-
COACH. MOTOR COACH DivisioN, GENERAL AMERICAN TRANSPORTATION COIreO-
RATION, its successors or assigns, in the exercise of the right to refrain from
any or all of the concerted activities guaranteed to them by Section 7 of
the Act.
WE WILL make Ralph H . Lundewall and Russell R. Heath whole for any
loss of pay they may have suffered because of the discrimination against
them.,
LOCAL 714, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO,
Labor Orga,v,izatiou.
By -------------------------------------------------------
(Agent or Representative ) (Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.