Jim O'Donnell, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1959

123 N.L.R.B. 1639 (N.L.R.B. 1959)

JIM O'DONNELL, INC. 1639
We therefore find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All printers, including senior
printers and senior printer trainees, employed in the printing depart-
ment of the Employer's Norwich, Connecticut, plant, but excluding
the back tenders, press supplymen, press reeler operators, ink men,
the maintenance man, and all other employees, guards, and super-
visors defined in the Act.
[Text of Direction of Election omitted from publication.]
Jim O 'Donnell , Inc. and Local 38, International Union of United
Brewery, Flour , Cereal , Soft Drink and Distillery Workers of
America, AFL-CIO. Case No. 7-CA-2040. June 11, 1959
DECISION AND ORDER
On March 26, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent Jim O'Donnell, Inc.,
Detroit, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 38, International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
1 As the record , exceptions , and brief adequately present the issues and positions of
the parties, the Respondent 's request for oral argument is hereby denied.
123 NLRB No. 201.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL-CIO, or any other labor organization of its employees
by disqualifying its office employees from participation in its Pension
Trust Plan, or in any other manner discriminating in regard to their
terms or conditions of employment on the basis of union membership
or representation.
(b) In any like or related mamler interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Amend the Pension Trust Plan to eliminate nonunion member-
ship or representation as a requirement for eligibility to participate
therein.
(b) Restore 'and permit participation in the Pension Trust Plan to
all old and new office employees who are or have been disqualified
from participation therein because of their membership in, or repre-
sentation by, the above-named Union, with all the interest, emolu-
ments, rights, and privileges in said Plan that would have accrued
to them but for such disqualification.
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all data, payroll records, time-
cards, personnel records and reports, and all other records necessary
to carry out the provisions of paragraph (b).
(d) Post at its office and place of business in Detroit, Michigan,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon re-
ceipt thereof and be maintained by it for a period of 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Seventh Region in writ-
ing, within 10 days from the date of this Order, as to what steps have
been taken to comply herewith.
2In 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
JIM O'DONNELL, INC. 1641
WE WILL NOT discourage membership in Local 38, International
Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, AFL-CIO, or any other labor organi-
zation of our employees, by disqualifying our office employees
from participation in our Pension Trust Plan or in any other
manner discriminating in regard to their terms or conditions of
employment on the basis of union membership or representation.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL amend our Pension Trust Plan to eliminate nonunion
membership or representation as a requirement for eligibility to
participate therein.
WE WILL restore and permit participation in the Pension Trust
Plan to all old and new office employees who are or have been
disqualified from participation therein because of their member-
ship in, or representation by, the above-named Union, with all the
interest, emoluments, rights, and privileges in said Plan that
would have accrued to them but for such disqualification.
JIM O'DONNELL, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Local 38, International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, herein called the
Union , the General Counsel of the National Labor Relations Board, by the Re-
gional Director for the Seventh Region '(Detroit, Michigan ), issued his complaint,
dated December 18, 1958, against Jim O'Donnell, Inc ., herein called the Respond-
ent. With respect to the unfair labor practices , the complaint alleges, in substance,
that: ( 1) Respondent maintains an Employees ' Pension Trust Plan which, by its
terms, denies benefits to employees who are or become members of a labor organi-
zation; (2) on or about March 7, 1958, Respondent terminated the participation of
named employees , and refused to allow other named employees to participate, in
said plan because they were or became members of the Union; and (3 ) by such
conduct Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the National Labor Rela-
tions Act, 61 Stat. 436, herein called the Act.
In its duly filed answer , Respondent , in substance, denies the unfair labor prac-
tice allegations , and affirmatively avers that (1) if any unfair labor practices took
place, they occurred when the Plan was first put into effect on December 29, 1952,
and hence are barred by Section 10(b) of the Act, and (2) any dispute over the
issue of the eligibility of union employees to participate in the Plan was merged in
the signing of a collective-bargaining agreement with the Union on November 1,
1957, covering the employees involved herein.
Pursuant to due notice, a hearing was held on February 5, 1959, at Detroit,
Michigan . All parties were represented at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses , to introduce relevant
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, to present oral argument at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. After the close
of the hearing, the General Counsel and Respondent filed briefs, which I have fully
considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
. Respondent, a Michigan corporation, maintains its principal office and place of
business in Detroit, Michigan, where it is engaged in the business of distributing
beverages. Respondent annually receives at its place of business in Detroit, Michi-
gan, goods valued in excess of $500,000, directly from points located outside the
State of Michigan.
Upon the above admitted facts, I find that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that Local 38, International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent maintains a Pension Trust Plan which by its terms applies only
to Respondent 's "nonunion office or salaried employees," who are otherwise qualified.
The issue in this case is whether Respondent violated Section '8(a)(1) and (3) of
the Act by terminating the participation of its office employees and by disqualifying
other office employees, otherwise qualified, from participating in this Pension Trust
Plan because they became members of the Union or were represented in collective
bargaining by the Union.
On December 29, 1952, Respondent entered into a trust agreement with the
Detroit Trust Company, entitled "O'Don Pension Trust" and hereinafter referred to
as the Pension Trust Plan or the Plan. This is a profit-sharing plan in which con-
tributions are made only by the Respondent, depending on its net profit for each
calendar year. The Plan provides that only the "following employees shall be
eligible to participate in the Employer's contribution to the Fund made on any
Anniversary Date":
(a) Every office and salaried employee, between the ages of 1.8 and 65, on the
Respondent's payroll when the Plan was established.
(b) Every office and salaried employee of the Respondent who is an employee
between the ages of 118 and 65 on'any future anniversary date, and has been such
an employee for 3 consecutive months prior to said 'anniversary date.
The terms "Employee" and "Participant" are defined as follows:
1.02 The term "Employee" means any non -union office or salaried em-
ployee of the Employer.
1.03 The Term "Participant" means any such employee who meets the
eligibility standards set forth in the Plan ... .
The term "Anniversary Date" is defined as December 31, the last day of 'any
calendar year. Benefits 'are paid to participants upon retirement at or after age 65,
upon total and permanent disability, or upon termination of the employment rela-
tionship for whatever cause, or to the beneficiary of the participant upon the latter's
death. The amount which will be paid to a participant or his beneficiary depends,
among other things, upon the length of service of a participant , pursuant to a formula
prescribed in the Plan.
Until July 1957, Respondent's office and salaried employees were neither mem-
bers of, nor represented by, any labor organization. In July 1957, Respondent
recognized the Union as the exclusive bargaining representative of its office em-
ployees, excluding confidential and management personnel, upon a showing that
four of its five office employees in the agreed unit had either become members of
the Union or had designated the Union as their collective-bargaining representative.
Thereafter, Respondent and the Union entered into negotiations for a collective-
bargaining 'agreement to cover the employees in the agreed unit, and on November 1,
1957, executed such an agreement which contained, among other things, a valid
union-security clause requiring as a condition of employment that present employees
join the Union not later than the 3 1st day from the effective day of the agreement
JIM O'DONNELL, INC. 1643
and new office employees to join the Union not later than the 3 - 1st day after the
date of hiring.
At the time of the contract negotiations and of the execution of the above agree-
ment, some of the office employees in the unit were qualified "participants" in the
Pension Trust Plan. Thereafter, Respondent terminated any further participation of
these office employees in the Plan and disqualified other office employees , who were
otherwise qualified, from any participation in the Plan , solely because said em-
ployees had become members of or were represented by the Union . The interest in
the Plan of the participants , who were thus disqualified from further participation,
was segregated and will be distributed to them pursuant to the terms of the Plan.
It is now well settled that pension benefits are part of the wage structure and
hence constitute a term or condition of employment .' Discrimination with respect
to a term or condition of employment , to discourage membership in a labor organiza-
tion , is proscribed by Section 8(a)(3) and ( 1) of the Act.
A case directly in point is General Motors Corporation , 59 NLRB 1143 , enfd. as
mod. 1150 F. 2d 201 (C.A. 3). In this case , the union, as a result of a consent elec-
tion, became the exclusive bargaining representative of employees in an agreed unit
of engineers and technicians , with the usual exclusions . At that time, the engineers
and technicians in the agreed unit were paid and classified on a salary -basis. Immedi-
ately after the union became the exclusive bargaining representative , the company
unilaterally changed the classification and method of payment of the employees in
the unit from a salary to an hourly rate . This was done pursuant to the company's
established policy to transfer salaried employees who had designated a collective-
bargaining representative to an hourly rate classification . As a result of this change,
the employees in the bargaining unit were deprived of certain benefits and con-
tingent privileges . For example , they became ineligible to receive separation pay
and to participate in a retirement plan, benefits which were accorded to salaried,
but not to hourly paid , employees . The Board held that: ( 1) By such conduct the
company discriminated with respect to the terms and conditions of employment of
the employees in the unit , pointing out that "the fact that some of the benefits, such
as retirement pay and separation allowance, may never have vested to the point of
immediate claim and enjoyment , is immaterial"; (2) the fact that the employees had
designated a bargaining representative " is not a proper factor to be considered by
an employer in the establishment or revision of working conditions and terms of
employment"; and (3 ) "unilateral changes in employment status made by an em-
ployer based on the exercise of the right to act collectively are repugnant to the
basic purposes of the Act , are per se at variance with the interdiction in Section 8(3)
against discrimination in regard to hire, tenure , and conditions of employment, and
an inveritable deterrent to, and interference with, the exercise of the right to self-
organization guaranteed in Section 7" (59 NLRB at pp. 1154-1155 ). The Board
concluded that the company 's conduct was violative of Section 8 (a) (3) and (1) of
the Act. The Board made similar findings in Crosby Chemicals , Inc., 121 NLRB 412.
So, too, in the instant case, the mere maintenance and continuance of the provi-
sion in the Plan making nonunion representation one of the qualifications for
eligibility to participate therein, itself tends to interfere with , restrain , and coerce
employees, who are otherwise eligible, in the exercise of their self -organizational
rights guaranteed in Section 7 of the Act . By enforcing this provision and terminat-
ing the union employees' further participation in the Pension Trust Plan and 'by
disqualifying other union employees , otherwise qualified, from participating in the
Plan, Respondent discriminated with respect to their terms and conditions of em-
ployment and interfered with , restrained , and coerced such employees in the exer-
cise of their Section 7 rights. As such discrimination was based solely on the basis
of their union membership or representation , it inherently tended to discourage
membership in the Union .2 It is thus clear that Respondent 's conduct was violative
of Section •8(a)(3) and ( 1) of the Act , unless there be merit to Respondent's
defenses.
Respondent 's Defenses
1. The Respondent contends in its answer that any dispute over the issue con-
cerning the eligibility of the union employees to participate in the Plan was "merged
in the signing of the agreement between Respondent and the Union" on November 1,
1957. In other words , as elaborated at the hearing and in its brief, it is the Re-
1 See e.g. , Inland Steel Company, 77 NLRB 1, affd. 170 F. 2d 247 ( C.A. 7), cert. denied
336 U . S. 960.
3 Radio Officers ' Union etc. v . N.L.R.B ., 347 U .S. 17: General Motors Corporation,
59 NLRB at p. 1149 ; Crosby Chemicals , Inc., 121 NLRB 412.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's position that the Union negotiated this issue with Respondent and re-
linquished any rights which said employees might have to participate in the Plan as
a concession for other benefits granted by Respondent. Concededly, the contract
grants the union employees many benefits which they did not previously have but
contains no provisions relating to pension or retirement benefits.
The contract negotiations began in the first week in August 1957, and negotiating
meetings were thereafter held once, and sometimes twice, a week until September 9,
when the office employees struck because of failure to reach agreement. At these
meetings, the Respondent was represented primarily by its president, James O'Donnell,
and its attorney, Hicks Griffiths; while the Union was represented primarily by its
then secretary-business agent, Harold Bondy, and/or Eugene J. McCann, an Inter-
national representative.
The subject of the Pension Trust Agreement was first mentioned toward the end
of a negotiating meeting held about the middle of August when Bondy asked,
"What's this I hear about a profit sharing plan" for office employees? O'Donnell
stated that there was such a plan. Griffiths stated he was unfamiliar with the Plan
and had no knowledge of it. At Bondy's request, O'Donnell agreed to supply him
with a copy of it at a later time.
Either at that or at a subsequent meeting, O'Donnell let Bondy look at O'Donnell's
copy of the Plan. O'Donnell and McCann merely looked at the provisions which
required that an office employee be nonunion in order to be eligible to participate.
O'Donnell took the position, which he has consistently maintained, that under the
Plan employees who belonged to a union were not eligible to participate therein.
Bondy was subsequently given a copy of the Plan and stated that he would send it
to the International's general counsel in Cincinnati, Ohio, for an opinion as to its
meaning. Griffiths testified that at the same time he was asked by Bondy as to
what the Plan provided and that he (Griffiths) replied it would be better to discuss
it with counsel who drafted it. Bondy delivered a copy of the Plan to James C.
Paradise, general counsel for the International . Meanwhile, meetings continued to
be held to negotiate the terms of a contract for the office employees in the unit.
On September 9, 1957, the office employees went on strike because of an impasse
over contract terms. An all-night. session, lasting into the morning of September 10;
was held at a hotel, during' which- Respondent and the Union agreed upon all .the
terms of a contract. Bondy agreed to recommend the negotiated terms to the em-
ployees on strike. After agreement was reached, Bondy mentioned that there was
still the matter of the Pension Trust Agreement, and stated that that could be
handled at a later time because the Union was still awaiting an interpretation from
its attorney. The employees accepted the negotiated terms of the agreement and
returned to work the next day.
About 10 days later a meeting was held in Attorney Griffiths' office for the sole
purpose of checking the language of the terms to be inserted in the contract which
had been agreed upon at the meeting of September 9-10. The Pension Trust Plan
was neither discussed nor mentioned at this meeting.
In a memorandum, dated September 13, 1957, and addressed to Union Business
Agent Bondy, James C. Paradise, general counsel of the International, stated that
Bondy had asked "(a) whether the Company can discontinue the pension trust
insofar as it applies to office employees who are now represented by the Union,
and (,b ) what amount , if any, such employees are entitled to when they withdraw
from the Trust." The memorandum then proceeded to answer these two questions.
With respect to the first question , Paradise stated that the definition of "employee"
and "participant" must be read together, that the Plan "does not provide for loss of
rights under the Plan by participants once they have qualified simply because they
have joined a union, nor does it provide that such employee shall not continue to
accrue rights under the Plan in the future," 3 that "it would be illegal for the Em-
ployer to discriminate against employees in describing the coverage of the Plan
simply on the basis of whether or not they are represented by -a union," and that
Respondent "should be told that if these employees are eliminated from the coverage
of the Plan" without the Union's consent, "the Union will file charges with NLRB."
With respect to the second question, Paradise stated that he could not determine the
specific amounts to which employees would be entitled "if they did terminate their
employment," and summarized the formula set forth in the Plan for employee
distributions.
3I find it unnecessary to resolve this issue but will assume the correctness of the
Respondent's position. that the Plan disqualifies office employees from further participa-
tion therein once they join, or are represented by, a union.
JIM O'DONNELL, INC. 1645
Bondy sent this memorandum to O'Donnell , who admittedly showed it to Attorney
Griffiths.
The collective -bargaining agreement was executed at a meeting in Attorney
Griffiths ' office on November 1, 1957. After the contract was signed Bondy asked
Griffiths what their stand was on the Pension Trust Agreement . Griffiths replied
that he had not had time to go over it and suggested setting up a special meeting
to discuss it.
Such a meeting was held about 10 days later in Griffiths ' office.4 The terms of
the Pension Trust Agreement were checked . O'Donnell still maintained that, in
view of the "non-union" clause in the Plan, the office employees were disqualified
from participation because they had joined the Union. Bondy disagreed with this
interpretation . Griffiths was not sure of the full meaning of the Plan and felt that
the trustees should be contacted . The meeting adjourned with O'Donnell requesting
Griffiths to contact the Trust Company and stating that he would also get the
opinion of Attorney O'Hara who had drafted the Plan.5
Thereafter , Bondy received in the mail from O'Donne ll a copy of a memorandum
addressed to O'Donnell from the Trust Company to the effect that the employees
in question were no longer qualified to participate in the Plan since they belonged
to the Union . Bondy telephoned to Griffiths , informed him of the receipt of this
memorandum , and stated that he was not satisfied and felt that his people had more
rights in the Pension Trust Plan . Griffiths stated that he would check further and
would let him know.
Nothing further occurred until March 1958, when Bondy received in the mail a
copy of a letter , dated March 4, 1958, from Attorney John P. O'Hara, Jr., to Re-
spondent . The letter opened with the following statement : "In accordance with
your request I have studied the question of whether an employee who was a non-
union office or salaried employee of Jim O'Donnell , Inc., and a participant under
the Pension Trust, become ineligible for participation under the plan if he joins a
union." O'Hara then quoted the Plan 's definition of the terms "Employee" and
"Participant" and concluded that such anemployee becomes ineligible to participate
in the Plan.
Bondy forwarded this letter to Paradise , the International 's general counsel. By
letter dated July 22, 1958 , Bondy informed O'Donnell that the Union 's attorney
had considered Attorney O'Hara's letter and believed that Respondent 's "office em-
ployees have more interest in your trust fund than his (O'Hara 's) opinion states."
Bondy expressed a willingness to discuss this matter with O'Donnell and concluded
with the statement that "if you feel you want to still stand on his ( O'Hara's)
opinion, we will have to start other action."
Not having heard further from Respondent , Bondy filed unfair labor practice
charges with the Board 's Regional Office on August 15, 1958.
The foregoing findings are not seriously in dispute . O'Donnell testified that early
in the contract negotiations he took the position that under the Plan the office
employees in the unit would be disqualified from participation therein once they
joined the Union, that Bondy acquiesced in and agreed with that position , that there-
after the question of the disqualification of these employees was no longer an issue,
and that the only remaining unresolved issue was a determination of the interest of
participating employees up to the time of their disqualification . I do not credit
O'Donnell's testimony in this respect, primarily because it is contrary to the pre-
ponderance of the evidence and contrary to the testimony of his own attorney,
Hicks Griffiths . Thus, Griffiths testified that until the receipt of Paradise's opinion,
two issues were involved-( 1) continued participation , should the employees change
their status from nonunion to union, and (2) if they could not continue to partici-
pate, what cash benefits could be transferred to them at some future time. Griffiths
admitted that during the contract negotiations , he had "confessed considerable igno-
rance over the terms of the trust agreement , and since Mr. Bondy felt Mr. Paradise,
the general counsel for the International , should advise him anyhow, I don't think
Mr. Bondy or I at any time prior to the time he got this opinion from Mr. Paradise
went into specific terms over it" [emphasis supplied]. Griffiths further admitted
that Bondy relied on Paradise 's opinion and that "I don't think Mr. Bondy ever
conceded it was any different than the interpretation which Mr. Paradise had made."
* Based on the credible testimony of Bondy . O'Donnell did not deny that such a meeting
was held after the contract was signed . Griffiths merely testified that he did not remem-
ber such a meeting being held but that it was possible that there was such a meeting, and
that "we had so many meetings . . . that I might not recall that particular one."
5 The findings in this paragraph are based on the credible testimony of Bondy, the only
witness who testified concerning what transpired at this meeting.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Griffiths also admitted that he never attempted to interpret the full meaning and
purport of the Trust Agreement because he did not feel qualified to do so, and that
the Union never gave up the idea that its members would continue to have benefits
under the Plan. As previously set forth, Paradise's opinion stated that participants
were not disqualified under the Plan, once they join or were represented by a union,
and that it would -be unlawful for Respondent to disqualify them on that basis with-
out the Union's consent. Paradise's opinion was received after September 13, 1957.
As all the terms of the contract had been fully and finally negotiated in the strike
settlement meeting of September 9-10, and in view of Griffiths admissions, it is
clear that Bondy did not accede to or accept O'Donnell's position during the con-
tract negotiations and that the question of the disqualification of the office em-
ployees was still very much of a live and unresolved issue after full agreement had
been reached on a contract covering the office employees. Moreover, Griffiths
admitted that neither Business Agent Bondy nor International Representative McCann
ever stated that they were giving up all their inquiries and demands regarding the
Pension Trust Plan in return for benefits given by Respondent under the terms of
the contract. Finally, if the issue concerning the disqualification of union office
employees from participating in the Plan had been resolved during the contract
negotiations or if the Union had waived or bargained away continued participation
in the Plan of union office employees as a concession for other benefits granted by
Respondent, as Respondent would have us believe, then there would have been no
need for Attorney O'Hara to have rendered an opinion as late as March 4, 1958, in
response to O'Donnell's request, on the question of whether a participant in the
Plan becomes ineligible for continued participation if he joins a union.6
Upon the basis of the foregoing and the entire record as a whole, I find that the
Union at no time agreed to or accepted O'Donnell's position with respect to the
disqualification of union employees from participation in the Plan; that this was
not one of the issues involved in the negotiations of the terms of the contract agreed
upon September 9-10, 1957, and executed on November 1, 1957; that the Union
did not waive or bargain away union employee participation in the Plan during the
course of the contract negotiations as a quid pro quo for other benefits or con-
cessions granted by Respondent; and that resolution of this issue was reserved and
deferred for consideration at a later date, without any relation to the terms of the
contract already agreed upon and executed.?
2. The Respondent contends that its conduct did not discourage membership in the
Union, pointing out that some employees joined the Union with full knowledge of
the disqualifying provisions of the Plan, and that Respondent acted with no anti-
union motivation. It is also noted that the unit employees were in any event re-
quired to join the Union as a condition of employment under the terms of the union-
security provisions of the contract. However, the Board has held that the Act re-
quires an employee, under these circumstances, only to tender the periodic dues and
initiation fees, and that the discharge of such as employees for failing to become or
remain a member pursuant to such a union-security clause is unlawful.8 Moreover,
under the Act, the employees are free to petition the Board for an election to
rescind the Union's authority to execute such a union-security clause in any future
contract (Section 9(e) (1)) .
O'Donnell's unreliability is further borne out by his testimony on direct examination
that during the contract negotiations he had Paradise's opinion before him in the negotiat-
ing conferences and made notes on the back of it with respect to the costs involved in
the Union's requests. When it was pointed out to him, on cross-examination, that he
had not received Paradise' s opinion until after the contract had been completely agreed
upon at the September 9-10 meeting, he lamely explained that he must have made those
notes on another paper and later transferred it to the back of Paradise's opinion.
7 See, e.g., Westinghouse Air Brake Company, 119 NLRB 1118. Respondent relies on
Intermountain Equipment Company v. N.L.R.B., 239 F. 2d 480 (C.A. 9) and N.L.R.B. v.
Nash-Finch Company, 211 F. 2d 622 (C.A. 8). These cases, however, are distinguishable.
Thus, in the Intermountain case, the court pointed out that during the contract negotia-
tions the union had "expressly left the benefits in question to the discretion of the
employer." In the Nash-Finch case, the union had bargained away the insurance and
bonus plan for other benefits, as is shown by the fact that the union's first draft of a•
proposed contract contained a "Maintenance of Standards" provision which, the court
pointed out, "would .have required the employer to maintain its insurance and bonus plans
for its union employees."
8 See, e. g., Union Starch 1 Refining Company, 87 NLRB 779, 784-786.
JIM O'DONNELL, INC. 1647
In any event, no independent evidence of an intent to discourage membership in
the Union is required , because discrimination based on union membership or repre-
sentation inherently discourages membership in a labor organization and Respondent
is presumed to intend the natural consequences of its conduct .9 As the Board stated
in the General Motors Corporation case ( 59 NLRB at p. 1145 ), Respondent's con-
duct "was of such a character as to have a natural tendency to discourage union
membership." 10
I find no merit in Respondent 's contention.
3. Finally, Respondent contends in its brief that if any unfair labor practices
were committed , they occurred either when the Pension Trust Plan was adopted in
1952 or "on December 31, 1957, the cut-off date of the participation of the union
employees ." As the first charge in this proceeding was filed on August 15, 1958,
the Respondent argues that the complaint is barred by Section 10(b) of the Act."
In other words , Respondent contends that compliance with Section 10(b) would re-
quire that the unfair labor practices be committed no earlier than February 15, 1958.
I do not agree with Respondent 's premises.
The Pension Trust Plan provides for the appointment by the board of directors of
the Employer of a committee , consisting of employees and participants under the
Plan, which "shall certify to the Trustee in writing , ( a) The names of all em-
ployees who have qualified to participate in the Employer 's contribution paid or
accrued on such Anniversary Date .. . The term "Anniversary Date" is de-
fined in the Plan as "December 31, the last day of the Fiscal Year." Thus, the
union office employees were not actually disqualified from participation in the con-
tributions for the year ending December 31, 1957, until the committee failed to
include their names on the list which it certified to the trustees on or before
March 1, 1958. In my opinion , the 10(b) period did not begin to run until the
employees were notified by Respondent of such official disqualification.12 Any
other position would permit Respondent, by deliberately withholding the informa-
tion concerning the committee 's official action , to bar the employees from filing
charges upon which a complaint could issue under Section 10(b) of the Act. The
fact that the employees may have been aware of the disqualifying provisions in the
Plan and of Respondent 's position with respect to them is not controlling. Nor is
it material that the Trust Company earlier indicated its opinion to be that such
employees were disqualified . For, until the committee took official action pursuant
to the terms of the Plan, the Respondent might have and could have changed its
position about enforcing these provisions or could have amended the Plan in this
respect,13 especially since this continued to be a live and highly controversial issue
with the Union.
The record does not disclose when the committee certified to the trustee the list
of qualified participants in the contributions for the year ending December 31, 1957.
However, the record does show that the only employee who was so notified by
Respondent was William Schleger, who received notification orally about March 1,
1958, and by letter dated March 7, 1958.
Moreover , Respondent 's violation was a continuing one, as it continued unlaw-
fully to discriminate against the union office employees , both old and new, for the
succeeding year in which they would otherwise be entitled to participate in the
contributions for that year , and the continued maintenance of the nonunion clause
in the Plan constitutes a continuing unlawful restraint on the employees' self-
organizational rights.14
° Radio Officers ' Union , supra.
10 See also Crosby Chemicals , Inc., 121 NLRB 412.
n Insofar as here pertinent , Section 10 ( b) provides that "no complaint shall issue
based upon any unfair labor practice occurring more than 6 months prior to the filing of
the charge with the Board."
12 Kramer Bros . Freight Lines Inc., 121 NLRB 1461, where the Board held that the
10(b) period began to run from the date of the posting of a seniority list which directly
affected the alleged discriminatee ' s job security.
13 The Respondent could have unilaterally amended the Plan in this respect. (See
paragraph X of Plan.)
14 Cf., e.g ., Eichleay Corporation, 110 NLRB 1295 ; Bryan Manufacturing Company, 119
NLRB 502, enfd . sub nom. Local Lodge No. 14 2 4, International Association of Machinists,
AFL-CIO , et at. v. N.L.R.B ., 264 F . 2d 575 (C.A., D.C .) ; Sharpies Chemicals , Inc., 100
NLRB 20; New Orleans Laundries , Inc., 114 NLRB 1077.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, I find that the complaint in this proceeding is not
barred by Section 10(b) of the Act.
Concluding Findings
As previously found, the provisions of the Plan which disqualify union office
employees from participation therein solely on the basis of their union membership
or representation constitute an unlawful restraint on the exercise by said employees
of their rights guaranteed in Section 7 of the Act. By unilaterally enforcing these
unlawful provisions and disqualifying the union employees from participating in
the Plan because they became members of, or were represented in collective bar-
gaining by, the Union, the Respondent discriminated in regard to the terms and
conditions of employment of the employees in the bargaining unit, thereby dis-
couraging membership in the Union, in violation of Section 8(a)(3) of the Act.
By such conduct the Respondent also interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8 (a)( I) of the Act. Whether the Respondent's conduct be viewed
only as a violation of Section 8 (a) (1) or also as 'a violation of Section 8 (a) (3) of
the Act, I find that the same remedy, hereinafter recommended, is necessary to
effectuate the policies of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that, by unilaterally disqualifying its office employees from partici-
pation in its Pension Trust Plan because they became members of, or were repre-
sented by, the Union, Respondent has unlawfully discriminated with respect to their
terms and conditions of employment, I will recommend that Respondent be ordered
to restore and permit participation in the Pension Trust Plan to all old and new
office employees who were or have been so disqualified, with all the interest, emolu-
ments, rights, and privileges in said Plan that would have accrued to them but for
such disqualification.
Paragraph X, entitled "Amendments," of the Pension Trust Plan provides that
"the provisions hereof shall be subject at any time to amendments by the Employer,
provided that no such amendments increase the duties or responsibilities of the
trustee without the consent in writing by the trustee." I will accordingly recom-
mend that Respondent be ordered to amend the Pension Trust Plan to eliminate
nonunion membership or representation as -a requirement for eligibility to partici-
pate in said Plan.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By disqualifying its office employees from participation in its Pension Trust
Plan because they became members of, or were represented by, the Union, the
Respondent has discriminated with respect to their terms and conditions of employ-
ment, thereby discouraging membership in the Union and interfering with, restrain-
ing, and coercing their employees in the exercise of rights guaranteed in Section 7
of the Act.
2. By the foregoing conduct the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8,(a) (3) and (1) of the Act.
3. 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.]