J. W. Rylands Co.

National Labor Relations Board - Board Decisions

Mar 31, 1955

111 N.L.R.B. 1296 (N.L.R.B. 1955)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. W. RYLANDS COMPANY and GEORGE R. BENCHECK
MILLWRIGHT'S LOCAL UNION No. 1102, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR and GEORGE R. BENCHECK. Cases Nos. 7-CA-
1086 and 7-CB-f02. March 81,1955
Decision and Order
On November 30, 1954, Trial Examiner John C. Fischer 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 Respondents and the
General Counsel filed exceptions to the Intermediate Report, and the
Respondent Union filed a brief in support of its exceptions.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications and exceptions
noted below.
1. The Trial Examiner found that by entering into the agreement
of May 1, 1953, with the Union and by discriminating as to the hire
and tenure of Bencheck, the Respondent Company violated Section
8 (a) (1) and (3) of the Act. He also found that by entering upon
and effectuating the agreement of May 1, 1953, and by refusing to
refer Bencheck, the Respondent Union violated Section 8 (b) (1) (A)
and (2). It is clear that the contract was unlawful2 because it con-
tained a preferential hiring provision 3 which went beyond the limited
form of union security permitted by Section 8 (a) (3) of the Act.4
But we are precluded from finding, as did the Trial Examiner, that
the execution of this agreement by the parties constituted an unfair
labor practice because it was not alleged or urged as such by the Gen-
I As the record , exceptions , and brief , in our opinion , adequately present the issues and
positions of the parties , the Respondent Union's request for oral argument is denied.
2 The Trial Examiner refers in his Intermediate Report not only to the agreement of
May 1, 1953, but also to the agreement of May 1, 1954, as containing language of employ-
ment and referral which is of doubtful legality. The questionable language appears only
in the May 1, 1953, contract. We note this correction. However, our findings herein ie-
niain unaffected because the alleged unfair labor practices occurred during th e period when
the May 1, 1953, agreement was in effect.
3 The-particular clause reads . "The employer agrees, on all work that comes under the
jurisdiction of the above-mentioned Local Union, to employ none but members in good"
standing of the Millwright's Local Union No. 1102 "
' Local 803 , International Brotherhood of Boilermakers, Iron Ship Builders and Helpers
of America, AFL (Harbor Ship 'Maintenanee Co ), 107 NLRB 1011.
111 NLRB No. 211.
J. W. RYLANDS COMPANY 1297
eral Counsel. Indeed, the General Counsel specifically indicated that
the contract was introduced only to show that the procedure followed
had been in accordance with its terms.
However, we agree with the Trial Examiner that the Respondents
violated the Act. Thus, operating pursuant to the terms of the then
existing contract, which was illegal on its face, the Respondent Com-
pany told Bencheck on three occasions that he had to obtain a permit
and clearance from the Union before he could be hired and laid him
off on one occasion because he did not have a permit; and the Respond-
ent Union told Bencheck on two occasions that he would not be re-
ferred to particular jobs because they involved premium work and
such work was not given to permit men. Under these circumstances,
we find that by refusing to hire Bencheck without clearance from the
Union, and by laying him off because he did not have a permit, the
Respondent Company, acting in pursuance of its illegal contract with
the Union, discriminated against him in violation of Section 8 (a) (3)
and (1) ; that by its effectuation of the terms of the discriminatory
hiring agreement in refusing to clear Bencheck for available jobs with
the Respondent Company, the Respondent Union caused the Company
to violate Section 8 (a) (3) ; and that by such conduct the Union vio-
lated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
I. The Respondent Company, J. W. Rylands Company, Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
A. Cease and desist from :
(1) Encouraging membership in Millwright's Local Union No. 1102,
United Brotherhood of Carpenters and Joiners of America, AFL, or
in any other labor organization, by discharging employees or refusing
to hire applicants for employment because they have not obtained
clearance or job referrals from the Respondent Union, or by discrimi-
nating in any other manner in regard to their hire or tenure of em-
ployment, or any term or condition of employment.
(2) Informing its employees that they may continue to work for
it, and applicants for employment that they will be employed by it,
only if they secure clearance from the above-named Union.
(3) In any other manner interfering with, restraining, or coercing
employees or applicants for employment in the exercise of the right to
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection , and to refrain from
any or all of such activities , 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) Upon request , make available to the Board or its agents, for
examination and copying , all payroll and other records necessary to
analyze and compute the amounts of back pay due under the terms of
this Order.
(2) Post copies of the notice attached hereto, and marked "Appen-
dix A" 5 at all sites within the territorial jurisdiction of the Respondent
Union where it is now engaged in the erection of structural steel con-
veyers and mechanical equipment . Copies of said notice , to be fur-
nished by the Regional Director for the Seventh Region, shall, after
being duly signed by a representative of the Respondent Company.
be posted by it immediately upon receipt thereof, and maintained by it
for a period of sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to employees and applicants
for employment are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered, de-
faced, or covered by any other -material.
(3) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10 ) days from the date of this Order, what steps it
has taken to comply therewith.
II. The Respondent Union, Millwright's Local Union No. 1102,
United Brotherhood of Carpenters and Joiners of America , AFL, its
officers , representatives , agents, successors , and assigns , shall:
A. Cease and desist from :
(1) Causing or attempting to cause J. W. Rylands Company, its
officers , agents, successors , or assigns , to discriminate against George
R. Bencheck or any other employee or applicant for employment in
violation of Section 8 (a) (3) of the Act.
(2) In any other manner restraining or coercing employees of, or
applicants for employment with, J. W. Rylands Company, its succes-
sors, or assigns , in the exercise of their right to engage in, or to refrain
from engaging in, any or all of the concerted activities specified in
Section 7 of the Act , except to the extent that such rights may be
affected by an agreement requiring membershipin a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
J. W. RYLANDS COMPANY 1299
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Notify J. W. Rylands Company in writing that it has no objec-
tion to the hiring and employment by the Company of George R.
Bencheck, or any other person, without prior or subsequent clearance
or job referral from it.
(2) Mail copies of the above notification to George R. Bencheck.
(3) Post at its business office and meeting hall in Detroit, Michigan,
and all other places where notices to its members are customarily
posted, copies of the notice attached hereto and marked "Appendix
B." 6 Copies of said notice, to be furnished by the Regional Director
for the Seventh Region, shall, after being duly signed by the repre-
sentative of the Respondent Union, be posted by it immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by the Respondent Union
to insure that said notices are not altered, defaced, or covered by any
other material.
(4) Mail to the Regional Director for the Seventh Region signed
copies of the notice attached hereto as "Appendix B" for posting, the
Company willing, at all its projects now operating within the terri-
torial jurisdiction of the Respondent Union, in places where notices to
employees and applicants for employment are customarily posted.
(5) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order what steps it
has taken to comply herewith.
III. The Respondents, J. W. Rylands Company, its officers, agents,
successors, and assigns, and Millwright's Local Union No. 1102, United
Brotherhood of Carpenters and Joiners of America, AFL, its officers,
representatives, agents, successors, and assigns, shall jointly and
severally make whole George R. Bencheck, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy," for
any loss of pay he may have suffered as a result of the discrimination
against him.7
6 See footnote 5, supra.
4 The dates of discrimination against Bencheck are from December 30, 1953, until April
9, 1954, and from April 14, 1954, to May 4, 1954. The section of the Intermediate Report
entitled "The Remedy" is hereby amended accordingly.
Appendix A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
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 our employees and appli-
cants for employment that :
344056-55-vol 111-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT encourage membership in Millwright's Local
Union No. 1102, United Brotherhood of Carpenters and Joiners
of-America, AFL, or in any other labor organization, by dis-
charging employees or refusing to hire applicants for employ-
ment, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of em-
ployment.
WE WILL NOT inform our employees that they may continue to
work for us, or inform applicants for employment that they will
be employed by us, only if they secure clearance or a job referral
from the above-named Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exer-
cise of the right to self-organization, to form, join or assist labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all of such activities, 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 by Section 8 (a) (3) of the Act.
WE WILL make whole George R. Bencheck for any loss of pay
he may have suffered as a result of our discrimination against
him.
J. W. RYLANDS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF MILLWRIGHT 'S LOCAL UNION No. 1102,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
AFL, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT
WITH, J. W. RYLANDS COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause J. W. Rylands Com-
pany, its officers, agents, successors, or assigns, to discriminate
against George R. Bencheck or any other employee of, or appli-
J. W. RYLANDS COMPANY 1301
cant for employment with, said Company, in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, J. W. Rylands Company,
its successors or assigns, in the exercise of their right to engage
in, or to refrain from engaging in, any or all of the concerted
activities specified in Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL notify J. W. Rylands Company in writing, and fur-
nish copies of such notification to George R. Bencheck, that we
have no objection to his hiring and employment without prior
or subsequent clearance or referral by us, or the hiring and em-
ployment of any other person without our clearance, by said
Company, on any project operated by said Company or upon
which operations may be commenced by said Company within our
territorial jurisdiction.
WE WILL make whole George R. Bencheck for any loss of pay
he may have suffered as a result of the discrimination against
him.
MILLWRIGHTS LOCAL UNION No. 1102 , UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed by George R. Bencheck, an individual, the General Counsel
of the National Labor Relations Board (herein called the General Counsel and the
Board) issued complaints on August 26, 1954, against Respondents J. W. Rylands
Company, herein called the Company, and Millwright's Local Union No. 1102,
United Brotherhood of Carpenters and Joiners of America, affiliated with the Amer-
ican Federation of Labor, herein called the Union. The complaints were consoli-
dated and alleged that on or about January 8, 1954, and at all times thereafter until
April 9, 1954, and again on or about April 22, 1954, and at all times thereafter until
May 6, 1954, the Company, by its officers, agents, and representatives, refused to
employ and/or continue the employment of George R. Bencheck because said George
R. Bencheck did not have a working permit from the Union and had not been re-
ferred to the job or cleared by the Union and/or because the Union required that
the aforesaid individual should not be employed at the construction project of the
Respondent Company, and at all times since on or about January 8, 1954, the Com-
pany has required membership in and/or a permit card or clearance from the Union
as a condition of employment in a millwright's job at the Respondent's project and
has preferred members of and holders of permit cards from the Union for such
employment and by so doing discriminated in regard to the hire and tenure of em-
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment of employees and applicants for employment , thereby encouraging mem-
bership in the Union , and Respondent did engage in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the National Labor Relations
Act, as amended (61 Stat. 136) herein called the Act, and by such acts has interfered
with , restrained , and coerced employees in the exercise of rights guaranteed to them
in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
The complaint against the Union charged that: On or about January 8, 1954,
and at all times thereafter until April 9, 1954, and again on or about April 22, 1954,
and at all times thereafter until May 6, 1954, the Union by its officers, agents, and
representatives, attempted to cause and/or caused the Company to transfer and/or
terminate the employment and refused to employ George R. Bencheck because he
was not a member of the Union and/or because the Union had not referred and/or
cleared George R. Bencheck for such employment and because said George R. Ben-
check did not hold a working permit from the Union, although membership in the
Union had been denied Bencheck for reasons other than his failure to tender the
periodic dues and initiation fees uniformly required by the Union as a condition
of acquiring and retaining membership and although there was no valid union-
security contract in existence between Respondent and the Company authorizing
the above-described conduct; the Union by its acts and conduct above described
caused and is causing the Company to discriminate in regard to the hire and tenure
of employees and applicants for employment in violation of Section 8 (a) (3) of
the Act, and to discriminate against employees and applicants for employment with
respect to whom membership was denied or terminated for reasons other than the
failure to tender the periodic dues and initiation fees uniformly required as a con-
dition of acquiring and retaining membership , and thereby engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (b) (2) of the Act;
the Union by the acts described did restrain and coerce and is restraining and coerc-
ing the Company's employees in the exercise of the rights guaranteed in Section 7
of the Act and did thereby engage in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act. Copies of the charges and con-
solidated complaints and order of consolidation were duly served on Respondents who
in turn filed answers denying the commission of the unfair labor practices alleged.
Pursuant to notice, a hearing was held on October 12, 1954, in Detroit, Michigan,
before a duly appointed Trial Examiner in which all parties participated, were rep-
resented by counsel , and were afforded full opportunity to be heard , to examine and
cross-examine witnesses , to introduce evidence bearing on the issues , and to file
briefs and present oral argument. Respondents introduced no evidence, but rested
their cases on the General Counsel's proof. Evidentiary and procedural motions
ruled upon are disposed of on the basis of the facts and law herein cited and relied
upon.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
Millwright's Local Union No. 1102, United Brotherhood of Carpenters and Joiners
of America, affiliated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act, which admits to membership em-
ployees of the Company.
H. THE BUSINESS OF THE EMPLOYER
It was stipulated between the Respondent Employer , the Respondent Union, and
the General Counsel that for the purpose of these proceedings the following con-
trolling facts were agreed to and were introduced and received into evidence for
the purpose of being used by the Board in determining whether or not the Board
should exercise its jurisdiction in determining whether the Company is engaged in
commerce within the meaning of the Act:
The Respondent-Employer is a Michigan Corporation engaged in the erection
of structural steel conveyors and mechanical equipment, with its principal offices
and headquarters at 21210 Telegraph Road, Detroit, Michigan. During the
period, January 1, 1954 through September 9, 1954, the J. W. Rylands Company
received contracts to erect conveyors and mechanical equipment in the States
of Ohio and Nebraska. The procedure followed by the J. W. Rylands Company
in acquiring and performing these contracts is as follows: The Company sends
J. W. RYLANDS COMPANY 1303
their bid for the contract from their office in Detroit, Michigan to the prime
contractor in whatever state he may be located. When the bid of the J. W.
Rylands Company is accepted, either J. W. Rylands, Sr. or Pat Kane goes to
state where the erection is to take place, the personnel needed to accomplish
the work under the contract is hired. If equipment is needed, it is rented at the
site. All materials are provided by the prime contractor at the site. Time cards
are kept on the job site and forwarded to the office of the J. W. Rylands Com-
pany in Detroit, Michigan where the payroll checks are made out and drawn
on accounts from Detroit Banks. All records are kept in the Office of the
J. W. Rylands Company at Detroit, Michigan. For the period, January 1, 1954
through September 9, 1954, the J. W. Rylands Company received $57,261.00
for contracts completed in accordance with the foregoing procedure in the
States of Ohio and Nebraska. Out of the foregoing sum of money, the J. W.
Rylands Company paid the salaries of all the personnel hired at the job site
and also equipment which was rented at the job site. The J. W. Rylands Com-
pany is presently performing contracts in accordance with the foregoing pro-
cedure in the State of California, the exact dollar value of which can not be
ascertained or determined until the completion of the contract. Millwright's
Local No. 1102, United Brotherhood of Carpenters and Joiners of America,
Affiliated with The American Federation of Labor, is a labor organization
within the meaning of the Act. J. W. Rylands, Sr., is President of Respondent-
Employer and is a supervisor within the meaning of Section 2 (11) of the Act.
Pat Kane is a Superintendent for the Respondent-Employer and a supervisor
within the meaning of Section 2 (11) of the Act. R. M. Laing, Ken Gordy,
Archie Carpenter and Alex Cook are agents of Millwright's Local Union No.
1102, United Brotherhood of Carpenters and Joiners of America, Affiliated
with The American Federation of Labor, within the meaning of Section 8 (b)
of the Act.
In the recent case of Jonesboro Grain Drying Cooperative (110 NLRB 481) the
Board held that its jurisdictional standards are met by an enterprise which annually
produces or handles and ships goods out of State, or performs services outside th@
State in which the enterprise is located, valued at $50,000 or more. Under the
stipulated facts it was agreed that for the period January 1, 1954, through September
9, 1954, the J. W. Rylands Company received $57,261 for contracts completed in
accordance with the foregoing procedure in the States of Ohio and Nebraska. J. W.
Rylands, Sr., testified that the Company was presenly performing contracts in the
State of California for the Ford Motor Co. estimated to amount to between $10,000.
and $12,000 this year. I find that the Company is engaged in interstate commerce
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The contracts
At the hearing, General Counsel, with agreement of the Union' s counsel , intro-
duced into evidence two contracts which existed between the Company and the
Union. One ran from May 1, 1953, to April 30, 1954, and its successor ran from
May 1, 1954, to April 30, 1955. It was stipulated that the purpose for their intro-
duction was only to show that the procedure in accordance with the contract had
been followed in this case, and that the legality of the contract itself was not attacked
by General Counsel, but rather the actions of the Company and the Union toward
the charger, Bencheck. Under this contract "the employer agrees, on all work that
comes under the jurisdiction of the above-mentioned Local Union, to employ none
but members in good standing of the Millwright's Local No. 1102. The term good
standing means they shall have a paid-up quarterly working card for the current
month or a bona fide permit." The contract provided, among other things, that each
employee should, as a condition of employment, agree to appear before the examin-
ing board of the Union to qualify as a millwright, and thereafter become and remain
a member of the Union for the term of his employment on and after the 30th
calendar day after his employment.
B. Sequence of facts
Bencheck testified that he was a millwright and also had worked as a rigger and
that he visited one Ken Gordy, assistant business agent of the Union, at his home
on or about November 19, 1953, asked Gordy for a job, and requested to join the
Union. Gordy told him that he had a job available with the Company and upon
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment of $5 issued Bencheck a union permit card and a referral slip to be used
at Rylands Company. Benchek then presented his work permit and referral card
to Pat Kane, superintendent for the Company, and worked "until around Christmas
time and then I was laid off for lack of work." Later in December he received a
letter from the Company signed by Pat Lynch which read:
We have a job coming up after the first of the year. The exact date has not
as yet been set. This job is a weekend job. If you are interested let us know
and we will contact you when the job is ready to go.
Bencheck took this letter to J. W. Rylands, Sr., on December 30, asked about the
job, and was advised that he would have to secure another work permit. He then
went to the union hall, asked for a renewal of his permit and referral card from
the business agent, Bob Laing, who stated: "He couldn't give me no permit or referral
card; that he had his own men to think of." He then returned to Rylands, advised
him of the Union's refusal, and was then told by Rylands that "he couldn't give me
the job without the permit."
Bencheck then traveled to Grand Blanc and applied to Ken Gordy for renewal
cards but was told: "That's a week-end job. We can't send a permit man on it."
(It appears that a "week-end job" is an overtime one, a job on Saturady and Sunday,
which pays double-time premium wages.) As a result, from December 30 to the
middle of February he did not work with the Company because "the Union wouldn't
let me."
On April 8, 1954, he received a telegram from the Company reading- "Have job
contact Union for permit call this office." Upon receipt of this wire, Bencheck again
reported to Rylands, who in turn advised him of the necessity of getting the union
clearances . He then presented himself to Business Agent Laing who said that he
"couldn't send me on that job, that it was an overtime job, week-end job, that he
could send me to the McKesson & Robbins job. He said he had his own men to
think of. Then he called J. W. Rylands Company." It appears that both Bencheck
and Laing were on two extensions of the same wire and talked with Pat Lynch of
the Company who was informed by Laing of his refusal to let Bencheck work on
the job offered by the Company, but rather, would send him on the McKesson job.
Lynch then told him to send the referral to the McKesson & Robbins job stating
"that we would straighten it out later." Bencheck then paid Laing $5 (April 9, 1954),
and got a permit and referral to the McKesson job. Upon reporting to Superin-
tendent Pat Kane, he was put on the Grand Blanc job instead of the McKesson one,
for which he had been referred by the Union. He testified: "He [Kane] said
he wouldn't pay any attention to it. He said we would go to Grand Blanc anyway."
When Bencheck sent his money order for $5 to the Union for renewal on April
13, 1954, it was returned with a note stating: "Sorry, we cannot renew your permit
at this time." Bencheck immediately took the note and uncashed money to Kane
who said he could not understand why the Union would refuse him a permit while
other permit men were still working. Next day, however, J. W. Rylands, Jr, who
was supervising, laid him off. "He said they had to lay me off because I didn't
have no permit and it would get them in trouble, if they worked me, with the Union."
Bencheck discussed his situation with Joe Firosy, the union steward on the job, who
said he could not understand why this permit had been canceled when other permit
men were working. Bencheck then took up his problem on April 23 with Business
Agents Laing and Carpenter, testifying: "I asked them why they wouldn't renew my
permit and they said they never would renew my permit again; that I would never
be able to work out of the local." The reason assiened on his dues card was that
he was jumping back and forth with the Rigger's and Millwright's Unions. Being laid
off and refused any further renewal, he asked that his money be returned. "He said
I'd never get nothing out of the Union." Going back to Rylands, he was informed;
"Well, a job's here but you got to have a permit to work."
C. Bencheck seeks protection of the Board
Bencheck then took direct action by filing, on April 28, 1954, charges with the
Board against both the Company and the Union. As to the Company he charged:
On or about April 22, 1954, the said employer by its officers and agents ter-
minated the employment of George R. Bencheck on the ground that he was not a
member of United Brotherhood of Carpenters and Joiners of America, Local
1102, although he had reasonable grounds for believing that such membership
was not available to the said Bencheck on the same terms and conditions gen-
erally applicable to other members, and further that he had reasonable grounds
J. W. RYLANDS COMPANY 1305
for believing that such membership was denied for reasons other than the fail-
ure of said Bencheck to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership. [Emphasis
supplied.]
As to the Union he charged:
On or about April 22, 1954, said labor organization, caused J. W. Rylands
Co. to discharge George R. Bencheck by cancelling work permits and denying
him membership in said organization on some ground other than his failure to
tender periodic dues and initiation fees uniformly required as a condition of
acquiring or retaining membership. [Emphasis supplied.]
D. Bencheck seeks reemployment
Nevertheless, on May 4, Bencheck telephoned Rylands, Sr., about returning to
work. Action was immediate. Rylands advised him that Laing wanted to see him
down at the union hall "right away that he had a job for me." After visiting Mr.
Rylands and being told that the Company had a job for him, Bencheck went to
Laing, at the union hall, who then gave him a permit and a referral card to the
Company. For this he paid $5. He held this job until he quit, at which time he filed
the additional charges against the Company and the Union. (The question as to
whether his quitting constituted a constructive discharge is not in issue as General
Counsel introduced no evidence on this point, and the change of heart of the Union
remains unexplained. Suffice to say, the mandates of the Act have been inveighed
in protecting Bencheck's rights by the General Counsel of the Board.)
Concluding findings
These findings are based upon testimony which stands unrefuted. The question
presented is whether the Respondent Company unlawfully laid off and refused George
R. Bencheck employment at the unlawful request of and because of the unlawful
refusal of referral or clearance by the Respondent Union. At the times of the dis-
criminations, the Respondents were bound by the collective-bargaining agreement
referred to above. Although this contract contains language relative to employment
and referral which is of doubtful legality, the General Counsel does not attack same.
Cf. Morrison-Knudson Company, Inc., 101 NLRB 123. Here, as there, his case is
specifically predicated upon the purported existence of a discriminatory policy favor-
ing union members over nonmembers. In the instant case, a so-called "permit
man" is never dispatched by the Union to a job which is an overtime or "premium"
wage job, even in the situation where the Company had offered it and wanted him
on the job. It is clear from the foregoing that the preferential or exclusive hiring
agreement and understanding between the Company and the Union is in effect an
illegal closed-shop agreement, and that Bencheck was discriminated against for rea-
sons other than nonpayment of dues and initiation fees uniformly required as a con-
dition of acquiring or retaining membership. In the Radio Officers' Union case, the
Supreme Court held (347 U. S. 17 at 40) that "The policy of the Act is to insulate
employees' jobs from their organizational rights. Thus, Sections 8 (a) (3) and 8
(b) (2) were designed to allow employees to freely exercise their right to join
unions, be good, bad, or indifferent members, or abstain from joining any union with-
out imperiling their livelihood." The Court noted that the only limitation imposed by
Congress on these rights was specified in proviso to Section 8 (a) (3) authorizing
certain union-security agreements. In the Radio Officers' Union case, the Board
also held (93 NLRB 1523 at 1527) that "discrimination aimed at compelling obedi-
ence to union rules (in this case, giving members premium jobs) encourages member-
ship in a labor organization no less than discrimination designed to combat, dual
unionism ," citing the American Pipe and Steel case, 93 NLRB 54. In its decision
enforcing the Board's order, the Second Circuit Court of Appeals held as to Sec-
tion 8 (a) (3) and 8 (b) (2) (196 F. 2d 960 at p. 965), that "refusal of clearance
caused the company to discriminate against Fowler in regard to hire. Without
necessary clearance it could not accept him as an employee. The result was to en-
courage membership in the union. No threats or promises to the company were
necessary. . . . Such conduct displayed to all nonmembers the union's power and
the strong measures it was prepared to take to protect union members." In affirm-
ing the circuit court, the United States Supreme Court held that specific evidence of
intent to encourage or discourage is not an indispensable element of proof of viola-
tion of Section 8 (a) (3), that proof of certain types of discrimination satisfied the
intent requirement, and that specific proof of intent is unnecessary where employer
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct inherently encourages or discourages union membership, relying on the
common-law theory that a man is held to intend the foreseeable consequences of his
own acts.
Applying the law to the facts of this case the Trial Examiner concludes and finds
that the Respondent Company, both by entering into the above-described agreement
with the Union and by discriminating as to the hire and tenure of Bencheck, en-
couraged membership in the Union and thereby violated Section 8 (a) (3) of the
Act.'
The Trial Examiner also concludes and finds that by entering upon and effectuating
a discriminatory hiring agreement with the Company, and by refusing to refer Ben-
check to an available job, the Respondent Union caused the Company to discrimi-
nate against employees and applicants for employment in violation of Section 8 (a)
(3) of the Act, and thereby restrained and coerced employees and applicants for
employment in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and the Union set forth in section III, above,
occurring in connection with the activities of the Company described in section II,
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 Respondents have engaged in certain unfair labor practices, I
shall recommend that they be ordered to cease and desist therefrom, and that they
take certain affirmative action designed to effectuate the policies of the Act.
I have found that the Company has unlawfully discriminated against George R.
Bencheck in regard to his hire and tenure of employment in violation of Section
8 (a) (3) and (1) of the Act, and that the Union unlawfully caused the Company
to engage in such discrimination in violation of Section 8 (b) (2) and 8 (b) (1) (A)
of the Act. I shall, therefore, recommend that the Company and the Union be
ordered, jointly and severally, to make George R. Bencheck whole for any loss of
pay he may have suffered as a result of the discrimination practiced against him,
by payment to him of a sum equal to the amount he would normally have earned
as wages on the Company's operations from the date of the discrimination against
him (December 30, 1953, until April 9, 1954, and from April 22, 1954, to May 4,
1954), less his net earnings during such periods. Back pay shall be computed in
accordance with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289.
However, as the Union clearly indicated to him and the Company that it would
prevent him from working on certain company projects in order to favor local mem-
bers, I shall recommend that the Union notify the Company and Bencheck that it
has no objection to the future hiring and employment of Bencheck or any other mill-
wrights by the Company on existing projects and any others the Company may start
in the future, within the Union's territorial jurisdiction. Cf. J. R. Cantrall Company,
96 NLRB 786; United Mine Workers of America, District 2, 96 NLRB 1389. I
shall recommend that the Company make available to the Board payroll and other
records to facilitate the computation of the amount of back pay due.
The nature and variety of the unfair labor practices committed by the Respondents
indicate a general purpose to limit the lawful rights of employees and applicants
for employment, and persuade me that such practices are potentially related to
similar unfair labor practices, the future commission of which may be reasonably
anticipated from Respondents' past course of conduct. The preventive purposes of
the Act will be thwarted unless the Board's order is coextensive with the threat.
I shall, therefore, recommend that a broad cease-and-desist order issue against both
Respondents.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Millwright's Local Union No. 1102, United Brotherhood of Carpenters and
Joiners of America, affiliated with the American Federation of Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
IN. L R. B v. The Lummus Co , 210 F. 2d 377 (C. A. 5) ; Radio Officers' Union, supra.
See also Thomas Rigging Co., 102 NLRB 65
SHEET METAL WORKERS, ETC. 1 307
2. By discriminating in regard to the hire and tenure of employment of George
R. Bencheck, thereby encouraging membership in a labor organization, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By the above discrimination and other conduct found above, thereby interfer-
ing with, restraining, and coercing employees or applicants for employment in the
exercise of rights guaranteed by Section 7 of the Act, the Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. By attempting to cause and causing the Company, an employer to discriminate
against George R. Bencheck in violation of Section 8 (a) (3) of the Act, the Union
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
5. By causing the Company to discriminate as aforesaid, and by other conduct
found above, thereby restraining and coercing employees or applicants for employ-
ment in the exercise of rights guaranteed by Section 7 of the Act, the Union has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION , LOCAL 49 and
FARNSWORTH & CHAMBERS CO., INC. Case No. 33-CD-5. March
31,1955
Decision and Determination of Dispute
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of Section 8 (b) (4) (D) of
the Act, the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have arisen.
,,
On September 22, 1954, Farnsworth & Chambers Co., Inc., herein
called the Employer, filed with the Regional Director for the Sixteenth
Region a charge alleging that Sheet Metal Workers International
Association, Local 49, herein called the Sheet Metal Workers, has en-
gaged in and is engaging in certain activities proscribed by Section
8 (b) (4) (D) of the Act. It was alleged, in substance, that the Sheet
Metal Workers had induced and encouraged employees of the Em-
ployer to engage in a concerted refusal to work in the course of their
employment with an object of forcing or requiring the Employer to
assign particular work to members of the Sheet Metal Workers rather
than to employees who are members of International Association of
Bridge, Structural & Ornamental Iron Workers, Local 495, herein
called the Iron Workers.
Pursuant to Section 102.71 and 102.72 of the Board's Rules and
Regulations, the Regional Director investigated the charge and pro-
vided for an appropriate hearing upon due notice to all the parties.
Ill NLRB No. 203.