H. M. Newman

National Labor Relations Board - Board Decisions

Aug 18, 1949

85 N.L.R.B. 725 (N.L.R.B. 1949)

In the Matter Of H. MILTON NEWMAN, AN INDIVIDUAL, D/B/A H. M.
NEWMAN 1 and ERNEST FRITZ, JR. and LOCAL 456, TEAMSTERS AND
CHAUFFEURS UNION, AFFILIATED WITH INTERNATIONAL BROTHER-
IHOOD OF TEAMSTERS, CHAUFFEURS, WAREI-IOUSEMEN AND HELPERS OF
AMERICA, AFL
In the Matter of LOCAL 456, TEAMSTERS AND CHAUFFEURS UNION,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and
ERNEST FRITZ, JR. and H. MILTON NEWMAN, AN INDIVIDUAL, D/B/A
H. M. NEWMAN 1
Cases Nos. 2-CA-233 and 2-CB-82, respectively.Decided August
18,194 9
DECISION
AND
ORDER
On October 14, 1948, Trial Examiner, J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent Union
filed exceptions to the Intermediate Report.
The Board has reviewed the Trial Examiner's rulings and finds that
no prejudicial error was committed.3 The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions, and
the entire record in the case, and hereby adopts the findings, conclu-
' As amended without objection at the hearing.
2 Although the Trial Examiner did not specifically state that the Respondents were con-
tinuing to engage in unfair labor practices , this finding is implicit in his conclusion, in
effect, that the unfair labor practices which he found had been committed had not been
remedied.
3 For the reasons set forth in the Intermediate Report, we find without merit the
Respondent Union's contention, in its exceptions, that the Respondent Employer is not
engaged in commerce within the meaning of the Act . N. L. R. B . v. Jones & Laughlin Steel
Corporation, 301 U. S. 1 ; N. L. R. B. v. Fainblatt, 306 U. S. 601 ; Wickard V. Filburn, 317
U. S. 111.
85 N. L. It. B., No. 132.
725
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions, and recommendations of the Trial Examiner, with the excep-
tions, modifications, and additions set forth below:
1. The 8 (b) (2) ; the 8 (a) (1) and (3)
The Trial Examiner found, and we agree, that the Respondent
Union violated Section 8 (b) (2) of the Act by its insistence that
Newman, the Respondent Employer, lay Fritz off as a driver because
he was delinquent in his union dues, and by its refusal to permit other
union drivers to operate Newman's trucks unless Fritz were laid off.
We agree also with the Trial Examiner's further finding that, by yield-
ing to the Respondent Union's insistence that Fritz be laid off, the
Employer violated Section 8 (a) (1) and (3) of the Act.
Section 8 (b) (2) provides that it shall be an unfair labor practice
for a labor organization or its agents :
to cause or attempt to, cause an employer to discriminate against
an employee in violation of subsection 8 (a) (3) .. .
Section 8 (a) (3) states that it shall be an unfair labor practice for
an employer :
. . . by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discour-
age membership in any labor organization : Provided, That noth-
ing in this Act, or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor
organization . . . to require as a condition of employment
membership therein . .. (i) if such labor organization is the
representative of the employees as provided in Section 9 (a), in
the appropriate collective bargaining unit covered by such agree-
ment when made; and (ii) if, following the most recent election
held as provided in Section 9 (e) the Board shall have certified
that at least a majority of the employees eligible to vote in such
election have voted to authorise such labor organization to make
such an agreement...." [Emphasis added.] 4
It is undisputed that no election pursuant to Section 9 (e) was
conducted.5 It is clear, therefore, that any discrimination by the
4 Section 9 (e) provides that: "(1) Upon the filing with the Board by a labor organization,
which is the representative of employees of employers as provided in Section 9 (a), of a
petition alleging that 30 per centum or more of the employees within a unit claimed to be
appropriate for such purposes desire to authorize such labor organization to make an
agreement with an employer of such employees requiring membership in such labor organi-
zation as a condition of employment in such unit , upon an appropriate showing thereof the
Board shall, if no question of representation exists , take a secret ballot of such employees,
and shall certify the results thereof to such labor organization and to the employer."
As noted by the Trial Examiner , the Union 's contract with the Employer contained a
union -shop clause which was to become operative upon the authorization of a union-shop
H. M. NEWMAN 727
Employer against Fritz because he had not paid his dues to the Union
and was not in good standing with the Union, would operate to en-
courage Fritz' membership in the Respondent Union and would,
therefore, be violative of Section 8 (a) (3). And, if the Union caused
or attempted to cause the Employer to discriminate against Fritz by
reason of his failure to maintain his good union standing, the Union
would thereby have violated Section 8 (b) (2).a
The record discloses that on March 4, 1948, Union Business Agent
Calabrese told Newman, the Respondent Employer, by phone, and later
repeated to him in person, that Newman could not let Fritz work that
day because Fritz' dues were in arrears and he was in bad standing
with the Union. When Newman permitted Fritz to continue work
despite Calabrese's insistence that Fritz go immediately to the union
office to pay his dues, Calabrese told Newman that he "was making a
big mistake," that he "should lay the man off until he straightened
out with the Union." Upon learning of the dispute regarding Fritz,
employees Kruse and Castellano, the remaining drivers at the Employ-
er's Mt. Vernon Yard, who were union members, refused to work for
Newman until he settled his difficulties with the Union regarding
Fritz.7
On March 10, 1948, when Newman met with union representatives,
Union Secretary-Treasurer Doyle, one of the Union's spokesmen at the
meeting, stated that Fritz could not work until he straightened out
his dues. Doyle also stated at the conference, as testified to by Newman,
that "Fritz was behind in his dues, he could not be allowed to work
agreement by the Board. However, no such authorization was secured. After the com-
mencement, on March 4, 1948, of the practices alleged in the complaint to be violative of
the Act , the Respondent Union filed two petitions for a union -security election among the
employees of the Employer but both petitions were later withdrawn. The petition in Case
No. 2-UA-1675 was filed on March 17, 1948, and withdrawn on August 6, 1948. The
Union ' s petition for an association-wide union -security election in Case No . 2-UA-3182,
involving the Westchester Allied Trade Association, of which the Employer herein is a
member, was filed on April 23, 1948, and withdrawn September 8, 1948.
6 At the hearing, and in its exceptions, the Respondent Union contended that by signing
a union -shop authorization on February 20, 1948, Fritz "is estopped from claiming injury
resulting from his failure to pay " his union dues. However , it is well established that
the Board does not adjudicate private rights but acts in a public capacity to give effect
to the declared public policy of the Act to eliminate and prevent the obstructions affecting
commerce set forth in the Act ; although an individual may file a charge , the complaint in an
unfair labor practice proceeding is that of the Board. ( Phelps Dodge Corporation v.
N. L. R. B ., 313 U . S. 177 .) Furthermore , the Act requires that before a union may enjoy
the rights conferred by a union -shop agreement it must comply with the conditions precedent
established by the Act. Were the Respondent Union ' s contention to prevail , individual
employees would thereby be enabled , in effect, to waive and nullify the conditions precedent
to the execution of a union -shop agreement fixed by Congress . Accordingly , we find this
contention of the Respondent Union to be without merit.
' Although the Trial Examiner found that Kruse, after learning of the dispute , worked
the remainder of the day on March 4 , 1948 , the record does not support this finding. It
shows rather that when Kruse learned of the dispu `e regarding Fritz he refused to make
any further deliveries.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.. . and the only way in which they [the Union] could permit the
other men to go back to work is to lay him [Fritz] off." 8
As noted by the Trial Examiner, at the March 10 conference it
was agreed between the parties that the Employer would lay Fritz
off and that the Union would send the union drivers back to work.9
On the following day, Newman told Fritz that he could not work
for him until he adj usted his differences with the Union regarding his
dues, and Kruse, in accordance with instructions from a union rep-
resentative,10 resumed work for Newman.
The Respondent Union, in its exceptions, contends that it did not
cause the union drivers to cease work on March 4, 1948. It is clear
that the work stoppage was, in effect, a strike:1' Although there is
no direct evidence of any specific instruction to the union drivers to
cease work, we have previously held that "a strike call may be given
in a forthright fashion, or informally in a manner which is understood
by'the irritated." 1'2 In view of Doyle's statement, at the conference of
March 10, 1948, that the Union would not permit the union drivers
to return to work unless Fritz were laid off, and Kruse's return to work,
pursuant to instructions from the Union, on March 11, 1948, the same
day Fritz was laid off,13 we find that the Union was responsible for
8 The position of the Union was, in effect, that Fritz was to be laid off until he paid his
dues and that, until he was in good union standing, union drivers would not be permitted
to work with him.
O Although the Trial Examiner made no formal credibility findings with regard to the
testimony of the various witnesses as to what took place at Newman's yard on March 4,
3.948, and at the office of Newman's attorney during the conference of March 10, 1948,
it is apparent from the Trial Examiner's findings of fact that he generally credited the
testimony of Newman and Fritz. Nor does the failure of the Trial Examiner to set forth
all conflicts in the testimony necessarily indicate that he did not also consider any con-
flicting evidence. Indeed, the Trial Examiner's statement in the Intermediate Report that
his findings were based "upon a preponderance of the evidence" indicates that he consid-
ered all the testimony and that his findings were made on the basis of all the available
evidence. In any event, in adopting the findings and recommendations of the Trial
Examiner to the extent indicated herein, we have independently considered the entire
record in the case and, as did the Trial Examiner, we credit the testimony of Newman
and Fritz. (N. L. R. B. v. Texas Mining ct Smelting Company, 117 F. 2d 86, 87 (C. A. 5) ;
Matter of Macon Textiles, Inc., 80 N. L. R. B. 1525.)
10 Kruse's testimony that he returned to work on March 11, 1948, pursuant to instructions
from a union representative, was uncontradicted.
"Matter of the Great Atlantic and Pacific Tea Company, 81 N. L. R. B. 1052 ; Matter of
Roane-Anderson Company, 82 N. L. R. B. 696.
12 Footnote 10, supra.
13 The Trial Examiner found that, after March 4, 1948, Kruse did not report for work
until March 11, 1948. Apparently, however, the Trial Examiner referred to Kruse's actual
return to work, as Newman testified that Kruse and Castellano both reported for work on
March 5, 1948, but refused to make any deliveries until the differences regarding Fritz
were adjusted with the Union. We note also that Calabrese testified that he instructed
both Kruse and Castellano to report to Newman for work each day and that both Doyle
and Calabrese testified, without contradiction, that between March 4, and March 11, 1948,
Kruse "shaped up" each day for work at Newman's yard. Castellano did not report as
he secured work elsewhere. The Union contends that Kruse and Castellano did not work
because they had been discharged by Newman. It is clear, however, as indicated by the
refusal, on March 5, of Kruse and Castellano to accept loads for delivery, that the ap-
parent willingness of the union drivers to return to work was conditioned on Newman's
H. M. NEWMAN 729
the strike 14 and that an objective of the strike was to cause the Em-
ployer to lay Fritz off because he had not paid his union dues.
We find that by: (a) the statements of Union Business Agent
Calabrese to Newman that Fritz could not work on March 4, 1948, and
that Newman should lay Fritz off until he paid his dues; (b) Union
Secretary-Treasurer Doyle's statements that Fritz could not work
until he straightened out his dues and that union drivers would not
be permitted to work for Newman unless Fritz were laid off; and (c)
the work-stoppage of union drivers from March 4 to March 11, 1948,
the Union caused the Respondent Employer to lay Fritz off from
March 11 to June 9, 1948, because he was not in good union standing,
and that neither the Respondent Employer nor the Respondent Union
was protected in these activities by a valid union-security agreement
pursuant to Section 8 (a) (3) of the Act. We conclude, therefore, as
did the Trial Examiner, that: (1) The Respondent Employer has dis-
criminated in regard to the hire and tenure of employment of Fritz
to encourage membership in the Respondent Union, thereby interfer-
ing with, restraining, and coercing his employees in the rights guar-
anteed in Section 7 of the Act, and that the Respondent Employer
has thereby violated Section 8 (a) (1) and (3) of the Act; 15 and (2)
the Respondent Union, having caused the Respondent Employer to
discriminate against Fritz in violation of Section 8 (a) (3) of the
Act, has thereby violated, Section 8 (b) (2) of the Act.16
compliance with the Union's demands regarding Fritz. Furthermore, the record does
not show that the union drivers would not or could not have returned to work but for the
Union's insistence that Fritz pay his dues or that Newman lay him off.
14 We reach this conclusion regardless of whether Union Business Agent Calabrese
initially instigated the work stoppage or whether the. Union merely subsequently adopted
the strike. In this connection, however, we regard as implausible Calabrese's testimony
that although on March 4, 1948, he spoke to and spent a considerable part of the day
with Newman's union drivers, he made no mention at all to them of Fritz.
15 As did the Trial Examiner, we find without merit the Respondent Employer's contention
that as Newman would not have laid Fritz off but for the pressure exerted against him
by the Respondent Union, he has not violated Section 8 (a) (3). It is well established
that it is the duty of an employer to resist domination of his right and power to employ
whether manifested by or toward a union. An employer is not relieved of responsibility
for his discrimination because economic necessity or the exigencies of the moment make
expedient a violation of the Act. N. L. R. B. v. Fred P. Weissman Company, 170 F. 2d
952, enfg. 69 N. L. R. B. 1.002 (C. A. 6), cert. denied 336 U. S. 972; N. L. R. B. v. American
Car and Fooandryy Co., 161 F. 2d 501 (C. A. 7), enfg. 66 N. L. R. B. 1031; N. L. R. B. v.
Goodyear Tire and Rubber Co., 129 F. 2d 661 (C. A. 5), enfg. 21 N. L. It. B. 306; N. L. R. B.
v. Star Publishing Co., 97 F. 2d 465 (C. A. 9) ; Mg Quay Norris Mfg. Co. v. N. L. R. B.,
116 F. 2d 748 (C. A. 7), cert. denied 313 U. S. 565; Wilson & Co., Inc. v. N. L. R. B., 123
F. 2d 411 (C. A. 8) ; N. L. R. B. v. Gluck Brewing Co., 144 F. 2d 847 (C.. A. 8) ; Idaho
Potato Growers v. N. L. R. B., 144 F: 2d 295 (C. A. 9), cert. denied 323 U. S. 769.
11 The Respondent Union contends, in effect, that the Respondent Employer did not
actually lay Fritz off. We have reached a contrary conclusion. However, the attempt
by a labor organization to cause an employer to discriminate against an employee in
violation of Section 8 (a) (3) is as much a violation of Section 8 (b) (2) as the successful
accomplishment of such discrimination. (Matter of National Maritime Union of America,
78 N. L. It. B. 971.) We are of the opinion that the statements of Doyle and Calabrese,
bereinabove set forth, and the work stoppage, constituted such an attempt by the Respondent
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Tke 8 (b) (1) (A)
The complaint alleged, and the Trial Examiner found, that the acts
of the Respondent Union in violation of Section 8 (b) (2) also consti-
tute a violation of Section 8 (b) (1) (A). We agree with the conclu-
sion of the Trial Examiner that the Respondent Union violated Sec-
tion 8 (b) (1) (A). In so finding, however, we rely solely upon the
evidence, revealed in the record, that on March 4, 1948, Union Business
Agent Calabrese told Fritz and later, in Fritz's presence, repeated to
Newman, that Fritz could not work that day until he went to the
union office and paid his clues. When Fritz, despite Calabrese's insist-
ence, nevertheless continued to work, Calabrese told him, "You know
the union is stronger than you. You cannot fight a union and win."
We are of the opinion that the quoted statements of Calabrese to Fritz,
implemented, as they were, by Calabrese's statement to Newman in the
presence of Fritz, amounted to a threatened loss of employment reason-
ably calculated to coerce Fritz into maintaining his good standing in
the union, in violation of his right under Section 7 to refrain from
such activity.17
The Remedy
The Trial Examiner found that although the Respondent Employer
was primarily responsible for the lay-off of Fritz, Newman would not
have laid him off if not for the pressure of the Union and that, under
these circumstances, the Employer and the Union were jointly and
severally liable for back pay. Although we agree with the Trial
Union . Moreover, although , as set forth in the Intermediate Report , the record shows
that after he was laid off on March 11, 1948, and until his reinstatement on Tune 9. 1948,
Fritz did voluntary nondriving work for Newman, the record does not establish, as con-
tended by the Respondent Union, that Fritz was compensated for such work. However,
even if Fritz were paid for this work , it is well settled that an employee whose position
has been changed because of participation in concerted activity has been discriminated
against within the meaning of Section 8 (a) (3). A like rule is applicable where such
change occurs by reason of a protected abstention from such activity. Furthermore, as
noted above, irrespective of whether or not Fritz was actually transferred to nondriving
work, any effort by the Union to achieve such discriminatory treatment by the Employer
would be violative of Section 8 (b) (2).
For the reasons set forth in the Intermediate Report , we likewise find without merit the
Respondent Union 's exceptions to the Trial Examiner ' s finding that Fritz is an employee
within the meaning of the Act.
17 Matter of Smith Cabinet Manufacturing Company, Inc., 82 N . L. R. B. 886; Matter of
Seamprufe, Incorporated, 82 N. L. R. R. 892.
Our agreement with the Trial Examiner's conclusion that the Respondent Union violated
Section 8 ( b) (1) (A) does not flow from our finding that the Respondent Union violated
Section 8 (b) (2), but is predicated on the fact that the specific acts of the Respondent
Union, set forth above, were themselves violative of Section 8 (b) (1) (A). As we have
found that the work stoppage of union drivers from March 4 to March 11 , 1948, was
violative of Section 8 (b) (2), and shall accordingly order the Respondent Union to cease
and desist from such conduct , we find it unnecessary to pass upon the question of whether
the work stoppage was also violative of Section 8 (b) (1) (A).
H. M. NEWMAN 731
Examiner's conclusion, we reject his finding that the Employer was
primarily responsible for the discrimination against Fritz.
The Act makes no distinction between primary and secondary re-
sponsibility for discriminatory treatment of an employee. It merely
provides, in Section 10 (c), that:
.. . If upon the preponderance of the testimony taken the
Board shall be of the opinion that any person named in the com-
plaint has engaged in or is engaging in any such unfair labor prac-
tice, then the Board shall state its findings of fact and shall issue
and cause to be served on such person an order requiring such
person to cease and desist from such unfair labor practice, and.
to take such affirmative action including reinstatement of em-
ployees with or without back pay, as will effectuate the policies
of the Act : Provided, that where an order directs reinstatement
of an employee, back pay may be required of the employer or
labor organization, as the case may be, responsible for the dis-
crimination suffered by him. . . . (Emphasis added.)
The legislative history of Section 10 (c) indicates that the House
bill 1s made no provision for back-pay orders against unions. Section
10 (c) of the House bill was amended in the Senate, however, to include
the back-pay provision as it now appears in that section of the Act.
In explanation of the adoption of the Senate amendment of Section
1.0 (c), the House Conference Report states: is
In Section 10 (c) both the House bill and the Senate amendment
incorporated language with respect to the Board's remedial orders
in cases of unfair labor practices by labor organizations. The
House bill provided that, in addition to ordering respondents to
cease and desist from unfair practices, the Board could order em-
ployers to take affirmative action to effectuate the purposes of
the Act, including reinstatement with back pay for employees
(a provision appearing in the present act), and could also order
representatives and employees to take affirmative action, and
deprive them of rights under the Act for not more than 1 year.
The Senate amendment did, not contain the provision specifically
authorizing the Board to deprive. representatives and employees
who engage in unfair practices of rights under the Act, but did
contain a provision authorizing the Board to require a labor
organization to, pay back pay to employees when the labor organ-
18 H. R. 3020, 80th Congress, 1st Session.
11 House Conference Report No. 510, on H. R. 3020 , 80th Cong ., 1st Sess ., p. 54.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ization was responsible for the discrimination suffered by the
employees.
The House bill, by implication, limited the Board in its choice
of remedial orders in cases of unfair labor practices by repre-
sentatives not involving back pay, by specifying but one type of
order that the Board might issue. The conference agreement
therefore omits this provision of the House bill. As previously
stated, employees are subject to the prohibitions of Section 8 (b)
only when they act as agents of representatives, but in these and
other cases, when they are disciplined or discharged for engaging
in or supporting unfair practices, they do not have immunity
under Section 7. The language in the Senate amendment with-
out which the Board could not require unions to pay back pay
when they induce an employer to discriminate against an. employee
is included in the conference agreement. (Emphasis added.)
Thus, the legislative history indicates that Congress intended Sec-
tion 10 (c) to extend the power of the Board so as to provide it with
a means to remedy the union unfair labor practices newly established
by the Labor Management Relations Act, comparable to the means it
already had to remedy the employer unfair labor practices established
by the National Labor Relations Act and reenacted in the amended
Act. The provision of Section 10 (c) which states that, in an unfair
labor practice proceeding, "back pay may be required of the employer
or labor organization, as the case may be, responsible for the discrimi-
nation suffered" by an employee, confirms and extends the broad
discretion which has always vested in the Board 20 to determine which
of the means available to it to employ to remedy unfair labor prac-
tices. Therefore, where, as here, the Board finds that an employer
and a labor organization are both responsible for the discrimination
against an employee, the Board's back-pay order may be directed
against both. As we have found that both the Respondent Employer
and the Respondent Union were responsible for the discrimination
suffered by Fritz'21 we shall order them jointly and severally to make
him whole for any loss of pay which he suffered by reason of the dis-
crimination against him.22
20 Virginia Electric f Power Company v. N. L. R. B., 319 U. S. 533; Phelps Dodge Cor-
poration v. N. L. R. B ., supra ; International Association of Machinists v. N. L. R. B.,
311 U. S. 72 ; N. L. R. B. v. American Laundry Machinery Company, 152 F. 2d 400 (C. A. 2) ;
Herzfeld v . Federal Trade Commission , 140 F . 2d 207 ( C. A. 2).
See the dissenting opinion of Member Reynolds in Matter of Lewis Meier d Company,
73 N. L. R. B. 520 (1947).
21 See footnote 15, supra.
22 Compare the rule generally applicable in tort actions that, "each of two or more
persons whose tortious conduct is a legal cause of harm to another is liable to the other
for the entire harm." Restatement of the Law-Torts, Vol. IV, Sec. 875. "For harm
resulting to a third person from the tortious conduct of another, a person is liable if
H. M. NEWMAN 733
We agree also with the Trial Examiner's finding that although
Fritz did not register for unemployment insurance, or seek other em-
ployment during the period of his lay-off, he did not incur. a wilful
loss of earnings. Fritz was an employee of long standing and con-
tinued to work for Newman on a voluntary basis, in the belief, con-
firmed by his retention between March 4 and March 11, 1948, that the
Employer wished to continue to employ him, and in the expectation,
eventually realized, that lie would be restored to his job within a short
time. We are of the opinion that in these circumstances Fritz' be-
lief that his reinstatement was imminent' was not unreasonable, and
we therefore do not believe he wilfully incurred a loss of earnings
during the period of his lay-off.
We shall notj however, as recommended by the Trial Examiner,
order Newman to pay Fritz the reasonable value of the voluntary
services rendered by the latter from March 11 to June 9, 1948, or
that this sum be deducted from the back pay for which the Respond-
ents are jointly and severally liable.
As we have found that both the Respondent Union and the Re-
spondent Employer have violated the. Act by their unfair labor prac-
tices, we shall not attempt to adjust between them the amount of back
pay for which they are liable but merely order them jointly and
severally to make Fritz whole for the losses he has suffered by reason
of the discrimination against him.
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 :
1. 1-I. Milton Newman, doing business as H. M. Newman, Mt. Ver-
non, New York, and his agents, successors, and assigns, shall:
(a) Cease and desist from:
(1) Encouraging membership in Local 456, Teamsters and Chauf-
feurs Union, affiliated with International Brotherhood of Teamsters,
he (a) orders or induces such conduct knowing of the conditions under which the act
is done or intending the consequences which ensue , or (b) knows that the other 's conduct
constitutes a breach of duty and gives substantial assistance or encouragement to the
other so to conduct himself, or* ( c) gives substantial assistance to the other in accom-
plishing a tortious result and his own conduct, separately considered , constitutes a breach
of duty to the third person ." Ibid., Sec . 876. "A person whose tortious conduct is
otherwise one of the legal causes of an injurious result is not relieved from liability for
the entire harm by the fact that the tortious act of another responsible person contributes
to the result . Nor are the damages against him thereby diminished . This is true where
both are simultaneously negligent and also where the act of one either occurs or takes
harmful effect after that of the other . It is immaterial that as between the two, one of
them was primarily at fault for causing the harm or that the other , upon payment of
damages would have indemnity against him." Ibid ., Sec. 879.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Warehousemen and Helpers of America, AFL, or in any
other labor organization of his employees, by laying off any of his
employees or discriminating in any other manner in regard to their
hire or tenure of employment, or any terms or conditions of employ-
ment;
(2) In any other manner interfering with, restraining, or coercing
his employees in the right to refrain from exercising the rights guar-
anteed them 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 the Board finds
will effectuate the policies of the Act:
(1) Post at his office and yard in Mt. Vernon, New York, copies
of the notice attached hereto as "Appendix A." 23 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by this Respondent, be posted by him
immediately upon receipt thereof and maintained by him for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to his drivers are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(2) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps he
has taken to comply therewith.
2. Local 456, Teamsters and Chauffeurs Union, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, Yonkers, New York, its officers, repre-
sentatives, and agents, shall :
(a) Cease and desist from :
(1) Requiring, instructing, or inducing H. Milton Newman, his
agents, successors, or assigns, to lay off employees because they are not
members in good standing in Local 456, Teamsters and Chauffeurs
Union, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, except in ac-
cordance with Section 8 (a) (3) of the Act;
(2) Directing, instigating, or encouraging employees to engage in
a strike, or approving or ratifying strike action taken by employees
for the purpose of requiring, except in accordance with Section 8
(a) (3) of the Act, that H. Milton Newman, his agents, successors,
or assigns, lay off or otherwise discriminate against employees, or
21 In the event this Order 'is enforced by 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."
H. M. NEWMAN 735
applicants for employment, because they are not members in good
standing iii Local 456, Teamsters and Chauffeurs Union, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL;
(3) In any other manner causing or attempting to cause H. Milton
Newman or his agents, successors, or assigns, to discriminate against
his employees in violation of Section 8 (a) (3) of the Act;
(4) Restraining or coercing employees of H. Milton Newman, his
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 the Board finds
will effectuate the policies of the Act :
(1) Post in conspicuous places in its business office in Yonkers, New
York, where notices to members are customarily posted, copies of the
notice attached hereto as "Appendi x B." 24 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by official representatives of Local 456, be posted by
the Local immediately upon receipt thereof and maintained by it for
a period of sixty (60) consecutive days thereafter. Reasonable steps
shall be taken by this Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(2) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto as "Appendix B," for posting, the
Employer willing, at the office and yard of H. Milton Newman, in
places where notices to employees are customarily posted. Copies of
said notice to be furnished by the Regional Director for the Second
Region, shall, after being signed as provided in paragraph 2 (b) (1)
of this Order, be forthwith returned to the Regional Director for said
posting;
(3) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply therewith.
3. H. Milton Newman, an individual doing business as H. M. New-
man, his agents, successors, and assigns, and Local 456, Teamsters and
Chauffeurs Union, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL, its
officers, representatives, and agents, shall jointly and severally, make
whole Ernest Fritz, Jr., for any loss of pay. he may have suffered be-
=cause of the discrimination against hinm, by payment to him of a sum
24 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."
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of money equal. to the amount he normally would have earned as wages
from March 11, 1948, the date he was discriminatorily laid"off, to June
9, 1948, the date of his reinstatement, less his net earnings during said
period.
MEMBER GRAY took no part in the consideration of the above De-
cision and Order.
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, I hereby notify my employees that :
I WILL NOT encourage membership in Local 456, Teamsters and
Chauffeurs Union, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, or in any other labor organization of my employees by
discriminatorily laying off any of my employees or discriminating
in any other manner in regard to their hire or tenure of employ-
ment, or any terms or conditions of employment.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the right to refrain from any or all of the
concerted activities guaranteed them by Section 7 of the Act, ex-
cept 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.
I WILL make Ernest Fritz, Jr., whole for any loss of pay suffered
as a result of the discrimination against him.
ALL my 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 con-
formity with Section 8 (a) (3) of the amended Act.
H. MILTON NEWMAN,
Eizployer.
By--------------
(Representative)
-------------
(Title)
Date- -------------------
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.
H. M. NEWMAN
APPENDIX B
NOTICE
737
To All Members of Local 456, Teamsters and Chauffeurs Union,
Affiliated With International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL, and to All Employees
of H. Milton Newman Doing Business as H. M. Newman
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 require, instruct , or induce H. Milton Newman,
doing business as H. M . Newman , to lay off employees because they
are not members in good standing in Local 456, Teamsters and
Chauffeurs Union, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,
AFL, except in accordance with Section 8 (a) (3) of the Act.
WE WILL NOT direct , instigate , or encourage employees to engage
in a strike , or approve or ratify strike action taken by employees
for the purpose of requiring , except in accordance with Section
S (a) (3) of the Act, that H. Milton Newman , his agents, suc-
cessors , or assigns , lay off or otherwise discriminate against
employees or applicants for employment because they are not
members in good standing in Local 456 , Teamsters and Chauffeurs
Union, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, AFL. .
WE WILL NOT in any other manner cause or attempt to cause
H. Milton Newman , his agents , successors , or assigns , to dis-
criminate against his employees in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT restrain or coerce employees of H. Milton Newman,
his agents , 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.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Ernest Fritz, Jr., whole for any loss of pay he
may have suffered because of the discrimination against him.
LOCAL 456, TEAMSTERS AND CHAUFFEURS
UNION, affiliated with INTERNA-
TIONAL BROTI-IERHIOOD of TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN ANT-1)
HELPERS OF AMERICA, AFL.
By ------------------------------------
(Representative ) ( Title)
Dated--------------------
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 AND RECOMMENDED ORDER
D[r. Jack Davis, of New York, N. Y., for the General Counsel.
Liebowitz and Schwan-a.n., by Mr. William Derkasch, of New York, N. Y., for the
Respondent Employer.
Sheehan and Harold, by Mr. John J. Sheehan, of New York, N. Y., for Respond-
ent Union.
STATEMENT OF THE CASE
Upon amended charges filed on June 17, 1948, by Ernest Fritz, Jr., of Tuckahoe,
New York, against H. Milton Newman, an individual doing business as H. M.
Newman, Mt. Vernon, New York, and against Teamsters and Chauffeurs Union,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, the Regional Director of the Second Region
of the National Labor Relations Board (New York, New York), on June 28, 1948,
issued an order consolidating the two cases. The same day the General Counsel
of the National Labor Relations Board, by the said Regional Director, issued a
consolidated complaint based on said charges against Newman and the Union'
alleging that Newman committed unfair labor practices within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act as amended by the Labor Management Relations Act, 1947 (61
Stat. 136), herein called the Act, and the Union committed unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7)
of the Act. Copies of the charges, the order of consolidation, the complaint, and
notice of hearing were served upon Newman, the Respondent Union, and Fritz.
With respect to unfair labor practices the complaint alleges that the Union
demanded that Newman discharge Fritz, one of his employees, and caused and
attempted to cause Newman to discriminate against Fritz in violation of Sect
tion S (a) (3) of the Act; that pursuant to these demands of the Union, New-
man on or about March 11, 1948, discharged Fritz and, until June 9, 1945, refused
to reinstate him; and that by said acts the Respondent Union has violated See-
1 For convenience herein the National Labor Relations Board will be referred to herein
as the Board, the General Counsel for the Board, and his representative at the hearing,
will he called the General Counsel, H. ,Milton Newman will be referred to either as Newman
or the Respondent Employer, and Local 456, Teamsters and Chauffeurs Union, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, will be called the Union, or the Respondent Union.
H. M. NEWMAN 739
tion 8 (b) (1) (A) and S (b) (2) of the Act, and the Respondent Employer
has violated Section 8 (a) (1) and (3) of the Act.
On July 8, 1948, Newman filed his answer admitting the discharge of Fritz
but denying the commission of any unfair labor practices or that he had failed
or refused to reinstate Fritz. The answer further alleges that Fritz was dis-
charged after the Union had demanded it and because two union member em-
ployees refused to continue to work for Newman, the Union refused to furnish
and prevented him from obtaining additional help, and in order to prevent the
total loss of his business. Newman's answer did not deny, as alleged in the
complaint, that lie was engaged in business affecting commerce within the
meaning of the Act. The Respondent Union's answer filed July 9, 1948, denies
all the allegations in the complaint excepting only the allegation that it was a
labor organization.
Pursuant to notice, a hearing was held in New York, New York, on July 20, 21,
and 22, 1948, before J. J. Fitzpatrick, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. All parties were represented by coun-
sel, participated in the hearing, and were granted full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues. At the conclusion of the General Counsel's case, Respondent Union
moved to dismiss the complaint as to it on the grounds of failure of proof that
(a) the Respondent Employer was engaged in commerce within the meaning
of the Act, (b) that the Respondent Employer engaged in any acts interfering
with the rights of his employees, and (c) that the Respondent Union in any way
violated the Act. The motion was denied. Ruling was reserved on a similar
motion to dismiss made, by the Respondent Union at the close of all the evidence,
and also on a motion by the Respondent Employer to dismiss as to him. These
motions are disposed of as will hereafter appear. All parties argued briefly on
the record in support of their various positions and have forwarded briefs to the
undersigned since the close of the hearing.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. NEWMAN'S BUSINESS OPERATIONS
H. Milton Newman, an individual, d/b/a H. M. Newman, licensed as a com-
mon carrier of petroleum products by the Interstate Commerce commission, is
engaged in the business of transporting petroleum products, particularly fuel
oil and gasoline, by five motor trucks and trailers to and from points ill the
State of New York and to and from points in the State of Connecticut. His
office is at Mt. Vernon, New York. The record does not disclose the origin of
the products picked up by his trucks- for transportation from the various points,
except that the petroleum products secured at the waterfront in New York are
from tankers that come from the State of New Jersey. In the calendar year
1947, Newman transported about $400,000 worth of petroleum products and
received for such services about $57,000. About 10 percent of the products so
handled were picked up in New York State and delivered in the State of Con-
necticut. No data was produced to show the percentage of such shipments from
Connecticut to New York, but Newman's estimate is accepted that the percent-
age of the dollar volume of the products handled by him in interstate commerce
is about 30 percent.
857829-50-vol. 85 48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newman does not deny that he is engaged, and was engaged, in commerce
within the meaning of the Act, but the Respondent Union challenges this allega-
tion in the complaint. In its brief the Union concedes that there is an interstate
aspect to Newman's business, but argues that such business is "essentially local
in character" and "public policy would not be served" by the assertion of juris-
diction in the case by the Board. It is true that Newman's business is confined
mostly to areas adjacent to New York City and not very extensive. But in the
Fainblatt case,' the Supreme Court of the United States held that the Congress
"set no restrictions upon" the Board where the business involved was relatively
small. The crucial test is the percentage of business that is in or affects inter-
state commerce. In this respect, the courts have sustained the Board's jurisdic-
tion where the percentage of interstate business was much lower than in the
instant case.' Furthermore, the Board has recently taken jurisdiction over
the business of a petroleum products distributing company where the entire
operation was confined to one State.' I am of the opinion therefore and find
that Newman is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 456, Teamsters and Chauffeurs Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, is a labor organization admitting to membership employees of Newman.
III. THE UNFAIR LABOR PRACTICES
As heretofore found, Newman's business consists exclusively of picking up
and delivering petroleum products for his customers. He operates five trucks
or trailer trucks, three of which headquarter in a yard at Mt. Vernon where his
office is located,5 and two at Portchester, both yards being in Westchester County,
New York. Newman had a closed-shop contract with the Union covering his
drivers, which terminated on December 31, 1947. The first of the year 1948 he
entered into a new contract with the Union, effective to June 30, 1950, containing
the following so-called union security clause:
The Union shall apply to the National Labor Relations Board for authority
to enter into a union shop contract covering the Employer herein. In the
event such authority is secured, all employees of the Employer in the cate-
gories above-mentioned shall become and remain members in good standing
of the Union during the term of this agreement. In the event the Employer
shall hereafter employ anyone who is not a member of the Union, such em-
ployee shall become a member of the Union within thirty (30) days after
the date of his original employment and shall remain a member thereof in-
good standing during the term of this agreement.
2 N. L. R. B. v. Fainblatt, 306 U. S. 601. °
3 Cf. N. L. R. B. v. Suburban Lumber Company, 121 F. 2d 829 (C. A. 3), cert. den.,
314 U. S. 693 (about 1 percent of the products shipped outside the State).
4 In the Matter of Felton Oil Co., 78 N. L. R. B. 1033.
5 Newman had no office help. He received orders by telephone at the Mt. Vernon office
(and sometimes at his home). The orders were then transmitted to such drivers as were
available. After making the required delivery or shipment the driver made out a "route
slip" which he turned in to the office. As Newman sometimes also drove a truck. any of
the drivers who happened to be at the office in his absence took the call and, if it were
a shipment of the particular type of oil or gasoline that he had been handling in the past,
the driver on his own initiative fulfilled the order.
H. M. NEWMAN 741
Up to the time of the close of the hearing no such authorization for a union
security clause had been secured from the Board.'
Ernest Fritz, Jr., who had been employed by Newman at the Mt. Vernon yard
as a truck driver since 1938, except about 4 years ending in 1945 when he was
in the United States Armed Services, joined the Union in January 1947, but was
3 months in arrears on his dues on March 1, 1948. On that date he mailed to the
Union a check sufficient to cover his arrears and also to pay for the current
month of March. This check, however, was promptly returned to him by the
Union with a note to the effect that in order to comply with the Union's regula-
tions he would have to pay not only for the arrears but also 3 months dues in
advance.
When Fritz reported at the yard at 7 a. in. on March 4, Union Business Agent
Peter Calabrese was on hand. He told Fritz that before he could go to work
he would have to report in person at the union office at Yonkers, New York (about
15 minutes journey by car from Newman's office) and pay his back dues and
the advance clues. Fritz offered to give Calabrese a check for the full amount
requested, but Calabrese refused to accept it, insisting that Fritz would have
to go to union headquarters where the records were kept. Fritz then telephoned
to Newman (who had not yet come to his office). Newman, over the telephone
and some minutes later when he reached the office, urged the Union's business
agent to accept Fritz' check, or permit him to settle with the union office after his
clay's work was over. Calabrese reiterated that the matter required Fritz' im-
mediate appearance at union headquarters, and offered to temporarily substitute
another driver and reimburse Fritz for any time he lost. Neither Fritz nor
Newman would agree to this arrangement and, under instructions from Newman,
Fritz went to work. The other two employees at the Mt. Vernon yards (Charles
F. Kruse and James Castellano, also union members) ' had in the meanwhile
taken out their first load. Upon their return about the middle of the morning,
they talked to Calabrese, who had remained at the yard. Castellano thereafter
refused to haul any more loads until Fritz' difficulty with the Union was settled,
and Newman discharged him. Kruse worked the remainder of the day, but did
not report thereafter until March 118
The week following March 4, Newman attempted to carry on his trucking
operations at lit. Vernon with Fritz and what driving he could himself, but was
losing business' He appealed to his attorneys who arranged a meeting with
8In March the Union filed a petition for a union-shop election among the employees of
Newman in which all three employees at the Mt. Vernon yard joined. In April a UA peti-
tion was filed requesting an election covering employees of all employer members of the
Westchester Allied Trades Association, including Newman. In July the Union asked for
an election confined only to Newman's employees.
T Kruse, Castellano, and Fritz were the three employees who signed the request for a
UA election heretofore referred to. .
8 Kruse denied that he worked on March 4 and testified that he was also discharged
by Newman at that time. Route sheets signed by Kruse show that he took out two truck
loads on March 4. Other inconsistencies and contradictions in Kruse's testimony, and
the events that transpired on March 1.0 and thereafter as will subsequently appear, cause
me to question the accuracy of Kruse's testimony in the above respect ; and I find, as testi-
fied to by Newman, that Kruse worked on March 4, but did not thereafter report for work
until March 11.
Newman's hearsay testimony that Business Agent Calabrese "went around and notified
all the yards that I was in trouble with the Union and not to load any trucks" is not
supported by any competent evidence and has been disregarded. The above finding that
Newman was losing business is based on his apparent inability during this period to secure
sufficient adequate help to handle current orders.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representatives on March 10. At this conference, attended by Newman
and his counsel, and by Union Secretary-Treasurer Edward Doyle as well as
counsel for the Union, Doyle stated that Fritz was behind in his dues and union
drivers would not be permitted to work with him until he had settled with the
Union. The conference closed with the agreement that Fritz was to be imme-
diately laid off as a driver until lie settled his arrears and the two union drivers
were to return to work.
On March 11, pursuant, to the above agreement, Newman told Fritz lie was laid
off until lie squared his account with the Union, and Kruse returned to work for
Newman.'0 Castellano, who apparently had secured other employnleut, did not
report on March 1.1 or thereafter.11 Fritz made no deliveries for Newman from
March 11. until June 9, but during this period he spent a good portion of each
working day at the Mt. Vernon yard and at the office taking and dispatching orders
and doing miscellaneous work for Newman." He received no pay or other com-
pensation for this volunteer service, made no effort to become reinstated in the
Union, and, so far as the record discloses, was not again urged by Newman to
do so. However, on June 9 Fritz was returned to his former job as a driver and
has since continued in that position.
Conclusions
The Respondent Union contends that Fritz was either a partner or otherwise
interested in Newman's business, or a supervisor, and therefore not an employee
within the meaning of the Act. These contentions are grounded upon the testi-
mony of union member Arthur Brunner that in 1946 (while Brunner was work-
ing for Newman) Fritz told Brunner that he "owned part" of the Newman busi-
ness; the testimony of Union Secretary-Treasurer Doyle that in December 1947,
Newman told him, "Fritz is my partner. He is giving orders here. He has just
as much interest in this business as I have" ; employee Kruse's testimony of a
similar admission by Newman to him in 1947 and Fritz' admissions that he took
orders over the telephone and dispatched the orders by telling other drivers
where to pick up the load and where to make delivery thereof, even before his
March lay-off, during Newman's absence from the yard.
Fritz denied that he had any financial interest in the Newman business or that
lie ever so stated. He testified that he told Brunner in 1946 that he hoped some
day he might become interested as stockholder when and if Newman incorpo-
rated. Newman denied the testimony of Doyle and Kruse, and testified that
Fritz had no interest in his business. While Fritz took and dispatched orders
during Newman's absence, there is credible, undenied testimony that other
drivers, on occasion, assumed and performed the same functions. There is no,
evidence that Fritz had or exercised any authority to hire, discharge, or dis-
cipline other employees, to recommend any such action, or that he performed
any supervisory duties as defined in the Act.
It is also noted that when Fritz joined the Union in 1947, lie was issued an
employee driver's card, and at the hearing the union officials testified that
10 Kruse worked as a driver for Newman until June 4 when he secured another driving
job and quit.
" The record is not clear, but apparently Castellano's place was filled by a nonunion
driver. According to Newman's credited testimony, after Kruse quit on June 4, Newman
had no union drivers in his employ.
L! During this 2-month period Fritz drove a truck to and from a repair shop on several
occasions, and in one instance borrowed it truck to move furniture for a relative. The
preponderance of the evidence fails to establish that lie operated as a truck driver during
the period.
H. M. NEWMAN 743
Fritz was in bad grace with the Union only because of his dues delinquency;
that all they required to reinstate him as a union driver was for Fritz to pay
to the Union in person his arrears and 3 months' dues in advance as required
by union regulations. Neither Business Agent Calabrese nor Secretary-Treas-
urer Doyle, who were the only officials of the Local who were called as wit-
nesses, testified that Fritz would have been refused an employee driver's card
and required to take out an owner driver's card, if he had settled with the
Union. Upon the entire record, I accept Newman's denials and Fritz' denial
and explanation, and find that Fritz is not an owner or a part owner, or a
supervisor, in the business of the Respondent Employer, but is an employee
therein within the meaning of the Act.
I find, upon a preponderance of the evidence, that Newman laid Fritz off as
a truck driver from March 11 to June 9, 1948, because Fritz was delinquent in
his dues with the Union, the Union insisted that he be laid off before permitting
other union drivers to operate Newman trucks, and to save his truck business
from collapse; and that neither Newman nor the Union were protected in such
activities by a union-shop agreement under the proviso in Section S (a) (3)
of the Act. I further find that by such acts, (1) the Respondent Employer has
discriminated as to the hire and tenure of employment of Fritz to encourage
membership in a union, thereby interfering with, restraining, and coercing his
employees in the exercise of the right guaranteed in Section 7 of the Act, and
in violation of Section 8 (a) (1) and '(3) of the Act,13 and (2) the Respondent
Union has caused Newman, an employer, to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, thereby restraining and coercing
the employees of Newman in the exercise of the rights guaranteed in Section 7,
and in violation of Section 8 (b) (2) and (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the•Respondent Employer and the Respondent Union set
forth in Section III, above, occurring in connection with the operations of
Newman 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
Having found that the Respondent Union and the Respondent Employer have
engaged in unfair labor practices, it will be recommended that each of them
cease and desist therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Union induced Newman to discriminatorily lay off
Ernest Fritz, Jr., from March 11 to June 9, 1948, and that such activity constituted
a violation of Section 8 (b) (2) of the Act by the Union, and a violation of Section
8 (a) (3) thereof by Newman. Fritz has been reinstated, but presumably has
suffered a loss in wages for which lie is entitled to reimbursement. Section 10.
(c) of the Act provides that "back pay may be required of the employer or
labor organizations, as the case may be, responsible for the discrimi-
-' The Respondent Employer points out that he was compelled to lay off Fritz in order
to save his business , and argues that under such circumstances the complaint should be
dismissed as to him . It has long been established law that economic necessity is no de-
fense for the commission of an unfair labor practice. N. L. R. B. v. Star Publishing Co.,
97 F. 2d 465. N. L. It. B. v. Gluck Brewing Co., 144 F. 2d 847.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation . . ." While it is true that unlawful pressure from the Union on
Newman caused the latter to lay off Fritz , there can be no question that Newman
must bear the primary responsibility for the overt , discriminatory act, because,
as Employer , he alone had the power and authority to put it into effect. How-
ever , Newman would not have committed the overt act if it had not been for the
union pressure . Under such circuinstances , both Newman , and the Union are
responsible and should be jointly and severally liable for any back -pay order.
During the period of the lay -off, Fritz voluntarily spent about 2 hours in the
morning of each working day, and each afternoon , at Newman 's office, taking
orders for deliveries over the telephone and dispatching the orders , and doing
other routine work in and around the Mt. Vernon yard that Newman ordinarily
would have attended to. This arrangement released Newman from routine work,
and gave him more opportunity to drive a truck as he often had done in the
past when occasion required . Fritz did not register for employment in any
agency, and made no effort to secure other work . There was no reason for him to
seek permanent employment elsewhere as he had every reason to believe he
would be reinstated as a truck driver just as soon as Newman could do so. The
question of willfully incurred losses by Fritz is therefore not involved."
The above-described office service rendered by Fritz and accepted by Newman
were certainly of some value to the latter, but the record discloses that Fritz
has received no pay or other compensate therefor . Having accepted the ser-
vice it is equitable that Newman should pay for it.
In order to effectuate the policies of the Act, it will be recommended that
Newman pay Fritz the reasonable value of the services rendered by Fritz from
March 11 to June 9, 1948, and that the Union and Newman jointly and severally,
be liable for and make Fritz whole for any losses in pay he may have suffered,
less such payment.
Upon the basis of the foregoing findings of fact and upon the entire record,
I make the following:
CONCLUSIONS OF LAW
1.. H. Milton Newman, an individual d/b/a H. M. Newman is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 456, Teamsters and Chauffeurs Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,.
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. By discriminating as to the hire and tenure of employment of Ernest Fritz,
Jr., to encourage membership in a labor organization, thereby interfering with,
restraining, and coercing his employees in the exercise of the rights guaranteed
in Section 7 of the Act, H. Milton Newman, d/b/a H. M. Newman, has violated
Section 8 (a) (1) and (3) of the Act.
4. By causing II. Milton Newman, d/b/a H. M. Newman, to discriminate
against one of his employees in violation of Section S (a) (3) of the Act, thereby
restraining and coercing the employees of Newman in the exercise of the rights
guaranteed in Section 7 of the Act, Local 456, Teamsters and Chauffeurs Union,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, has violated Section 8 (b) (2) and (1) (A)
of said Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
14 In the Matter of Laredo Times, 58 N. L. R. B. 460.
H. M. NEWMAN
RECOMMENDATIONS
745
Upon the basis of the above findings of fact and conclusions of law, I recom-
mend the following:
1. H.. Milton Newman, d/b/a H. M. Newman, his agents, successors; and
assigns, shall :
(a) Cease and desist from encouraging membership in Local 456, Teamsters
and Chauffeurs Union, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor
organization of his employees, by discriminating in regard to their hire or
tenure of employment, or any terms or conditions of employment, thereby inter-
fering with, restraining, or coercing his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Take the following affirmative action to effectuate the policies of the Act:
(1) Pay Ernest Fritz, Jr., the reasonable value of his services in doing routine
office and yard work from March 11 to June 9,194S;
(2) Post in a conspicuous place at his office in Mt. Vernon, New York, and
maintain for a period of at least sixty (60) days, copy of the notice attached,
hereto marked Appendix A and signed by Newman. Post, or permit the posting
of, in a similar manner and like period, a copy of notice attached hereto marked
Appendix B ;
(3) Notify the Regional Director for the Second Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps he has taken to comply therewith.
2. Local 456, Teamsters and Chauffeurs Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, its officers, representatives, and agents, shall :
(a) Cease and desist from causing or attempting to cause H. Milton Newman.
an individual d/b/a H. M. Newman, or any other employer, to discriminate
against his employees in violation of Section 8 (a) (3) of the Act, thereby
restraining or coercing said employees in the exercise of the rights guaranteed in
Section 7 of the Act.
(b) Take the following affirmative action to effectuate the policies of the Act:
l.l.) Post conspicuously at its office in Yonkers, New York, and maintain for a
period of at least sixty (60) consecutive days a copy of the notice attached
hereto marked Appendix B. The notice shall be signed by a duly authorized
officer of the. Union. Post, or offer to post, a similarly signed copy of said notice
in a conspicuous place in the office of H. Milton Newman, d/b/a 1-1. M. Newman, in
Mt. Vernon, New York ;
(2) Notify the Regional Director for the Second Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps it has taken to comply therewith.
3. H. Milton Newman, an individual d/b/a H. M. Newman, his agents, suc-
cessors , and assigns, and Local 456, Teamsters and Chauffeurs Union, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, its officers, representatives, and agents ,'jointly and
severally make whole Ernest Fritz, Jr., for any loss of pay he may have suffered
because of the discrimination against him , by payment to him of a sum of money
equal to the amount he normally would have earned in wages as a truck driver
from March 11, the datfp of his discriminatory lay-off, to June 9, 1948, the date on
which he was reinstated, less his net earnings , and as-more particularly set forth
in the section herein entitled, "The remedy."
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before ten (10) days from the
date of the_ receipt of the Intermediate Report each Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tion's, the National Labor Relations Board issue an order requiring the Re-
spondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, 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, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate 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. Immediately 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. Statements of excep-
tions and briefs shall designate by precise citation the portions of 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 14th clay of October 1948.
J. J. FITZPATRICK,
Trial Examiner.
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 Labor Management
Relations Act, 1947, I hereby notify my employees that :
I WILL NOT interfere with, restrain, or coerce my employees in the exercise
of the rights guaranteed in Section 7 of said Act, by discriminating in regard
to their hire or tenure of employment, or any term or condition of employ-
ment, to encourage membership in a labor organization.
I WILL MAKE Ernest Fritz, Jr., whole for any loss of pay suffered as a result
of discrimination.
H. MILTON NEWMAN, an individual d/b/a H. M. NEWMAN,
Employer.
Dated -------------------- By -----------------------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
H. M. NEWMAN
APPENDIX B
747
NOTICE. TO UNION MEMBERS AND .TO THE EMPLOYEES OF H. MILTON NEWMAN,
D/B/A H . M. NEWMAN
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, 1947, we hereby give notice :
WE WILL NOT cause or attempt to cause H . Milton Newman, an individual
d/b/a H. Al. Newman, or any other employer , to discriminate against his
employees in violation of Section 8 (a) (3) of the Act.
WE WILL MAKE Ernest Fritz, Jr., whole for any loss of pay suffered as a
result of discrimination.
LOCAL 456 , TEAMSTERS AND CHAUFFEURS UNION,
AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL,
Labor Organization.
Dated -------------- By --------------------------------- --------------
(Name and Title of Officer)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.