Local 229

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1700 (N.L.R.B. 1958)

1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purposes of collective bargaining or other mutual aid or
protection , or to refrain from any and all 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.
WE WILL offer Hans Pedersen immediate , unconditional reinstatement to his
former or substantially equivalent position.
WE WILL make whole Robert Lavadure, Hans Pedersen, and Ernest H. Pettit
for any loss of pay suffered them by reason of the discrimination practiced against
them, in accordance with the recommendations of the Intermediate Report and
Recommended Order.
All our employees are free to become, remain , or refrain from becoming members
of the above -named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the amended Act.
E. V. PRENTICE MACHINE WORKS, 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.
Local 229, United Textile Workers of America , AFL-CIO [J. Rad-
ley Metzger Co., Inc .] and Local 485, International Union of
Electrical , Radio and Machine Workers, AFL-CIO. Case No.
2-CB-3032. June 30,1958
DECISION AND ORDER
On January 23, 1958, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate 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 to the Intermediate Report. The Charging Union filed
exceptions to the Intermediate Report seeking an expanded remedy.
The Board' has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed . The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications :
Although it had been served with the charge, the complaint, and
notice of hearing, Respondent neither filed an answer nor entered an
appearance until the General Counsel, approximately 21/2 months
after issuance of the complaint, filed a motion for judgment on the
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated Its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Bean and Jenkins].
120 NLRB No. 218.
LOCAL 229 1701
pleadings and for issuance of Intermediate-Report and Recommended
Order, under Section 102.20 of the Board's Rules and Regulations.
However, after receipt of the Trial Examiner's order to show cause
why such motion should not be granted, Respondent sought to file an
answer none pro tune, which request was denied by the Trial Ex-
-aminer. Accordingly, he granted the General Counsel's motion.
We agree that the Respondent has not presented an adequate excuse
for its default nor justified its request for permission to file an answer
nunC pro tune, for the following reasons in addition to those set forth
by the Trial Examiner.2
The Trial Examiner states that from the Respondent's letter ex-
plaining its failure to file a timely answer it does not appear that the
Trustee took over the affairs of the Respondent before the Respond-
ent's default. However, we take official notice of the fact that the
report of the AFL-CIO Ethical Practices Committee on its proceed-
ing involving the international union was dated September 16, 1957.9
The Respondent's explanation, when considered in conjunction with
this additional fact, shows affirmatively that the Trustee was actually
in office prior to September 30, 1957, the date on which the complaint
herein was issued. It also reveals that the intraunion proceeding
which allegedly required the Trustee's full attention had, in fact, been
completed prior to the filing of the charge in the instant case on Sep-
tember 17, 1957. Therefore, we must reject the implication of Re-
spondent's letter that the complaint could have come to the Trustee's
attention only by chance during his examination of the-allegedly
incomplete or inadequate files of the Respondent.
We also take official notice of the fact that the international union
was restored to probationary good standing in the AFL-CIO at the
AFL-CIO's convention which ended December 12, 1957,4 and we note
that the appearance on behalf of Respondent was entered on Decem-
ber 18, 1957, approximately a week later. Accordingly, we can only
conclude that the Respondent failed to respond to any of the numer-
ous papers served on it by the General Counsel because it was awaiting
the action of the AFL-CIO before taking any action in this case, and
the Trial Examiner is correct in his finding that the Respondent's
statement -amounts to nothing more than an assertion that it was too
busy with other affairs to attend to filing an answer.
Under the circumstances of this case there was clearly no abuse of
discretion by the Trial Examiner in denying Respondent's request to
file an answer.6
In reaching our decision we place no reliance on the fact that Respondent submitted
an unsworn statement or failed to support its statement by affidavits.
8 40 LRR 444.
+ 41 LRR 124.
awe have previously held that the granting of summary judgment in the absence of a
timely answer to the complaint does not violate due process of law . Liquid Carbonic
Corporation, 116 NLRB 795.
,1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent, Local 229, United
Textile Workers of America, AFL-CIO, New York, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Performing, maintaining, enforcing or giving effect to any con-
tract, agreement, understanding, arrangement, or practice with J.
Radley Metzger Co., Inc., requiring membership in Local 229, United
Textile Workers of America, AFL-CIO, as a condition of employ-
ment, unless such contract, agreement, understanding, arrangement,
or practice conforms with the provisions of Section 8 (a) (3) of the
Act, as amended.
(b) Requiring J. Radley Metzger Co., Inc., to make contributions
only for its employees who are members of Local 229, United Textile
Workers of America, AFL-CIO, to the Health Trust Fund or under
any law enacted for the benefit of employees.
(c) Maintaining, operating, or administering the Health Trust
Fund in such a manner as to favor employees of J. Radley Metzger
Co., Inc., who are members of Local 229, United Textile Workers of
America, AFL-CIO.
(d) In any like or related manner causing or attempting to cause
J. Radley Metzger Co., Inc., to discriminate against its employees in
violation of Section 8 (a) (3) of the Act, as amended, or restraining
or coercing the employees of J. Radley Metzger Co., Inc., in the
exercise of 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) Reimburse any employees of J. Radley Metzger Co., Inc., for
any contributions they were forced to make from their personal funds
under the New York State Disability Law which they would not have
been required to make if they were members of Local 229, United
Textile Workers of America, AFL-CIO, and for any benefits from
the Health Trust Fund of which they were deprived because of non-
membership in Local 229, United Textile Workers of America,
AFL-CIO.
(b) Preserve and make available to the National Labor Relations
Board or its agents, upon request, for examination and copying, all
records of the Health Trust Fund, and all other records in its pos-
session, custody, or control, necessary to establish the identity of em-
ployees entitled to, and to compute the amount of, reimbursement due
under this Order.
LOCAL 229 1703
(c) Post at its offices and meeting halls in New York, New York,
copies of the notice attached hereto marked "Appendix." B Copies of
the said notice, to be furnished by the Regional Director for the Sec-
ond. Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Promptly mail to the said Regional Director signed copies of
the said notice for posting, J. Radley Metzger Co., Inc., being willing,
in the New York plant of the said employer.
(e) 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 herewith.
6In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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 MEMBERS OF LOCAL 229, UNITED TEXTILE WORKERS OF
AMERICA, AFL-CIO AND TO ALL EMPLOYEES OF J. RADLEY
METZGER CO., INC.
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, you are notified that :
WE WILL NOT perform, maintain, enforce, or give effect to any
contract, agreement, understanding, arrangement, or practice with
J. Radley Metzger Co., Inc., requiring membership in our union
as a condition of employment, unless such contract, agreement,
understanding, arrangement, or practice conforms with the provi-
sions of Section 8 (a) (3) of the National Labor Relations Act,
as amended.
WE WILL NOT require the said Employer to make contributions
only for its employees who are our members to the Health Trust
Fund or under any law enacted for the benefit of employees.
WE WILL NOT maintain, operate, or administer the Health Trust
Fund in such a manner as to favor employees of J. Radley Metz-
ger, Inc., who are our members.
WE WILL NOT in any like or related manner cause or attempt to
cause the said Employer to discriminate against its employees in
violation of Section 8 (a) (3) of the National Labor Relations
Act, as amended, or restrain or coerce the employees of the said
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer in the exercise of rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL reimburse any employees of J. Radley Metzger Co.,
Inc., for any contributions they were forced to make from their
personal funds under the New York State Disability Law which
they would not have been required to make if they were members
of Local 229, United Textile Workers of America , AFL-CIO, and
for any benefits from the Health Trust Fund of which they were
deprived because of nonmembership in our union.
LOCAL 229, UNITED TEXTILE WORKERS OF
AMERICA, AFL-CIO,
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
On September 17, 1957, Local 485, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, herein called the Charging Party, filed a charge
against Local 229, United Textile Workers of America , AFL-CIO, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (b)
(1) and (2) of the Act. A copy of the charge was served upon the Respondent
on September 18, 1957. On September 30, 1957 , the Regional Director 1 issued
a notice of hearing ,a which contained the following statement:
You are further notified that, pursuant to Section 102.20 of the Board's
Rules and Regulations , you shall file with the Regional Director , acting in
this matter as agent of the National Labor Relations Board , an original and
four copies of a verified answer to the said Complaint within ten ( 10) days
from the service thereof, and that unless you do so all of the allegations in the
Complaint shall be deemed to be admitted to be true and may be so found by
the Board.
On the same day, the Regional Director issued a complaint alleging, among other
things, that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. The
Respondent filed no answer. On November 26, 1957, the General Counsel3 filed
and served upon all parties motion for judgment on the pleadings and for issuance
of Intermediate Report and Recommended Order , based upon the Respondent's
failure to file an answer to the complaint. No party filed any response to this
motion . The matter was referred to me for appropriate action . On December
3, 1957, the motion was denied "without prejudice to the General Counsel' s right
to resubmit it at a later date if accompanied by proper proof of service of the
complaint on Respondent Local 229." On December 11, 1957, the General Coun-
sel filed and served upon all parties resubmitted and renewed motion for judgment
on the pleadings and for issuance of Intermediate Report and Recommended Order,
accompanied by a copy of the affidavit of Charles Heynesworth, an employee of
the Board, that he had on September 30, 1957, served notice of hearing , complaint
and charges in the above-entitled matter , by postpaid registered mail, upon all
parties, including the Respondent . The Charging Party and the Company filed
' The designation "Regional Director ," as used herein , refers to the Regional Director
for the Second Region of the National Labor Relations Board and his agents
2 Simultaneously, the Regional Director consolidated this case with Case No . 2-CA-5539.
On January 16, 1958, the Board severed this case from Case No. 2-CA-5539.
E The designation "General Counsel ," as used herein , refers to the General Counsel of
the National Labor Relations Board and his agents.
LOCA1. 229 1705
responses, discussed in more detail below, regarding the nature of the appropriate
remedy. On December 18, 1957, counsel for the Respondent entered an appearance
and requested that action on the General Counsel's pending motion be withheld
temporarily. On December 23, 1957, all parties were granted until January 6,
1958, to show cause why the General Counsel's resubmitted and renewed motion
for judgment on the pleadings and for issuance of Intermediate Report and Recom-
mended Order should not be granted; and why the notice of hearing issued Sep-
tember 30, 1957, should not be revoked.4 On January 2, 1958, the Respondent
filed a motion "to permit the filing of an answer, nunc pro tunc, to the allegations
contained in the complaint." On January 3, 1958, the General Counsel filed his
opposition to the Respondent's motion and renewed his request for judgment on
the pleadings; he also urged that the notice of hearing be revoked.
We turn first to the Respondent's motion. In support of this motion the Re-
spondent submitted an unsworn statement which reads, in part, as follows:
Local 229 was placed under trusteeship by the International President of the
United Textile Workers of America, the parent Union of Local 229. The
Trustee took possession of the affairs of Local 229 and shortly thereafter, chief
officers of Local 229 were severed from any connection with the Local. The
Trustee found conditions in a great state of confusion and despite strenuous
efforts on his part to ascertain facts, was unable for a long time to find records
in the files of the Local Union. Subsequently, the International Union itself
became involved in a proceeding before the Ethical Practices Committee of the
AFL-CIO and thereafter both the International President and the International
Secretary-Treasurer resigned and the General Counsel of the Union severed that
connection with the International. . . the entire situation affecting both the
Local and the International Union was in a state of uncertainty. This accounts
for the fact that the Trustee of Local 229, who is also an International Vice-
President, was compelled to devote his time and attention to the pressing matters
affecting the whole Union. It is for this reason that a timely answer was not
filed.
To this statement, the General Counsel responds:
It is respectfully submitted that [the above-described statement], without regard
to its procedural deficiencies, presents no sufficient cause, reason or excuse for
Respondent Local 229's failure to file an Answer herein.
Aside from its lack of supporting affidavits, the statement of the Respondent is
significant for what it does not say. Thus, it does not deny that the Respondent was
duly and properly served with the complaint, nor does it deny that it failed to file an
answer. Moreover, it does not state when the Trustee referred to took over the
affairs of the Respondent, so that it does not appear that he did so before the
Respondent's default occurred. Assuming, however, that the Trustee took over
before the default, there is no denial that he was aware of the 10-day deadline, nor
explanation for his failure to ask for an extension of time due to the press of other
matters. Nor is any explanation given for the complete silence of the Respondent
from September 30, 1957, until December 18, 1957, after the General Counsel had
filed his second motion for judgment on the pleadings. In short, the statement
amounts to nothing more than an assertion that the Respondent was too busy with
other affairs to attend to filing an answer. Viewed in this posture, it is clear that
the Respondent has neither presented an adequate excuse for, its default nor justified
its request for permission to file an answer nunc pro tunc. The Respondent's motion
is accordingly denied.
Let us now consider the General Counsel's motion for judgment on the pleadings.
By this motion, the General Counsel seeks a finding "that Respondent . . . by its
failure to file an answer . . has admitted the allegations of the complaint to be
true" and requests that an appropriate Intermediate Report be issued, "including
such findings and conclusion and recommending an appropriate remedy," or in the
alternative requesting the issuance of a rule "to show cause why the above requested
relief should not be granted." The copy of the affidavit of service accompanying
the General Counsel's renewed motion constitutes satisfactory evidence that a copy
of the complaint and notice of hearing described above was duly served upon the
Respondent on September 30, 1957. It is also clear from the Board's formal files
in the matter, of which I take official notice, that the Respondent has not filed any
* Also why this case should not be severed from Case No 2-CA-5539 In view of the
action of the Board on January 16, 1958, severing this case from Case No 2-CA-5539,
this matter is now moot
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer herein, although the notice of hearing adequately apprised it of its duty
to do so. Therefore, in accordance with Section 102.20 of the Board's Rules and
Regulations, Series 6, as amended,5 and in accordance with decisions of the Board in
similar cases,6 the General Counsel's motion is granted. Accordingly, all allegations
of the complaint are deemed to be true and are so found, and the notice of hearing
issued September 30, 1957, is revoked.
Upon the complaint, the failure of the Respondent to answer thereto, and the
entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
J. Radley Metzger Co., Inc., herein called the Company, is a New York corpora-
tion with its principal office and place of business in New York, New York, where
it is engaged in the manufacture, sale, and distribution of plastic covers, textile
covers, and related products. During the year preceding the issuance of the com-
plaint, the Company shipped manufactured products valued in excess of $1,000,000
from its New York plant to points outside the State of New York. It is accordingly
found that the Company is, and at all material times has been, engaged in commerce
within the plieaning of the Act, and that it will effectuate the policies of the Act
for the Board to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is, and at all material times has been, a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The contract of April 21, 1953
1. Facts
On or about April 21, 1953, the Respondent entered into a collective-bargaining
agreement with the Company, in which the Company recognized the Respondent
as the exclusive bargaining representative of all the Company's "employees eligible
to membership in the [Respondent]." This contract contained, among other things,
the following provisions:
All employees shall be required to join the Union after a 30-day period follow-
ing their employment or the effective date of this agreement, whichever is
later, and shall remain members in good standing in the Union as a condition
of employment. The Employer agrees to discharge, upon receipt of a registered
letter from the Union, any employee who has been expelled or suspended by
the Union for being in arrears in dues or undermining the Union.
At the time this agreement was signed, the Respondent "was not . . . duly
designated and selected as the representative for the purposes of collective bargaining
by a majority of the employees" in the unit described in the contract, and "has not
been, and is not now" such majority representative. At all times since the execution
of this contract, the Company and the Respondent "have maintained in effect and
enforced sa.d contract," and the Company has recognized the Respondent "as the
exclusive bargaining representative for a unit of all . . . production and mainte-
nance employees of [the Company] at the Metzger plant."
2. Conclusions
Section 8 (b) (1) (A) of the Act prohibits interference by unions with the rights
of employees protected by Section 7 of the Act. Section 8 (b) (2) of the Act
5 Prior to December 4, 1957, Section 102.20 read, in part, as follows : "The Respondent
shall, within 10 days from the service of the complaint, file an answer thereto. . . . All
allegations in the complaint, if no answer is filed, or any allegation in the complaint not
specifically denied or explained in an answer filed, unless the Respondent shall state in the
answer that he is without knowledge, shall be deemed to be admitted to be true and may
be so found by the Board "
a Modern Optics, Incorporated, Case No. 89-CA-216 (unpublished), enf. 201 F. 2d 513
C. A. 5) ; Local 170, International Biothcrhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL (Anchor Motor Freight), 110 NLRB 850; Fruit Indus-
tries, Inc, 114 NLRB 516; Liquid Carbonic Coi poration, 116 NLRB 795; and County
Electric Co , Inc., et al., 116 NLRB 1080, 1087.
LOCAL 229 1707
makes it an unfair labor practice for a union to cause or attempt to cause an employer
to violate Section 8 (a) (3) of the Act. Section 8 (a) (3) of the Act prohibits an
employer from discriminating with respect to the hire or tenure of employment of
his employees to encourage or discourage membership in any labor organization,
and contains the following provisos:
. . . nothing in this Act . . . shall preclude an employer from making an
agreement with a labor organization . to require as a condition of employ-
ment membership therein on or after the thirtieth day following the beginning
of such employment or the effective date of such agreement, whichever is the
later, (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 agreement when made . . . Provided further, That no employer shall
justify any discrimination against an employee for nonmembership in a labor
organization . (B) if he has reasonable grounds for believing that mem-
bership was denied or terminated for reasons other than the failure of the
employee to tender the periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership;
Thus, the representative status of the Union involved is a prerequisite to the
execution of a valid union-security provision. Here, however, the Respondent was
not the representative of the employees in question on April 21, 1953, and the
union-security clause quoted above is therefore invalid. Moreover, aside from the
Respondent's lack of representative status, the agreement requires the Company
to discharge upon demand by the Respondent "any employee who has been expelled
or suspended by the Union for . . . undermining the Union." Such a contractual
provision, threatening, as it does, loss of employment to any employee who "under-
mines" the Respondent, clearly exceeds the bounds of permissible union security,
and is invalid?
It is true that this contract was executed more than 6 months before service of
the charge upon the Respondent. Accordingly, because of the limitation contained
in Section 10 (b) of the Act, no unfair labor practice finding may be bottomed upon
the contract's execution. However, the parties have continued to enforce the con-
tract and have continued it in effect. This constitutes "a continuing offense." 8 The
Board has held that the enforcement or continuance in effect of illegal security
clauses within 6 months of the service of the charge constitutes an unfair labor
practice .9 It is accordingly found that, by enforcing and maintaining in effect the
illegal union-security clauses of its contract with the Company since on or about
March 18, 1957, the Respondent attempted to cause the Company to discriminate
against its employees in violation of Section 8 (a) (3) of the Act, thereby itself
violating Section 8 (b) (2) of the Act. Moreover, the Respondent thereby restrained
and coerced the Company's employees in the exercise of rights guaranteed in Section
7 of the Act, in violation of Section 8 (b) (1) (A) of the Act.1e
7 Cf. Convair, a Division of General Dynamics Corporation, 111 NLRB 1055, 1057, enf. as
mod 241 F. 2d 695 (C A. 9)
8N L. R B v Gaynor News Company,.Ine., 197 F. 2d 719, 722 (C A. 2), affd. 347
U. S. 17; and Bryan Manufacturing Company, 119 NLRB 502
9 Triboro Carting Corporation, 117 NLRB 775, 780; M. B. Morgan Painting Contractor,
111 NLRB 395, 401-402; Eichleay Corporation, 110 NLRB 1295, 1297; and Eba8co Serv-
ices , Incorporated, 107 NLRB 617, 619.
18 The contract of April 21, 1953, between the Company and the Respondent also con-
tained the following clause
The Employer may not discharge any regular member of the Union who has been
employed for a period of thirty days or more, unless the Union consents thereto, in
writing and except as herein otherwise provided for If the Employer is desirous
of discharging any employee, the Employer shall file a complaint, in writing, with
the Union,-stating such intent, together with` the reasons therefor. Upon receipt
of such a letter by the Union from the Employer, the parties hereto agree to confer
in an attempt to amicably adjust the situation . In the event the Union and the
Employer are unable to adjust such a situation within a period of five days after
receipt of said letter from the Employer, then same shall be submitted to
arbitration as hereinafter provided
In view of my conclusion that the union-security clauses of the contract are invalid, I
deem it unnecessary to pass upon the validity of the clause quoted in this footnote A
finding that this clause is invalid would merely be cumulative and would not affect the
scope of the order hereafter recommended
1708 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD,
B. Activities of the parties after signing the contract
1. Facts
The contract referred to above provided for a Health Trust Fund covering all
employees of the Company included in the unit described therein. While it "pur-
ported to act as the exclusive collective bargaining representative" of these em-
ployees, the Respondent has, since on or about March 18, 1957, "maintained,
operated and administered the Health Trust Fund . . only for the benefit of [its]
members." Moreover, since on or about March 18, 1957, the Company "has made
contributions to the Health Trust Fund provided for in the contract . . . only for
employees who were members of Respondent 229 and not for other non-member
employees covered by said contract." In doing so, the Company acted "in accord-
ance with and/or based upon an arrangement, agreement or understanding between
[the Company] and Respondent 229 and/or . . . a practice engaged in by both."
The "New York State Disability Law 11 . . covers . . . all production and
maintenance employees" of the Company. Since on or about March 18, 1957, the
Company "has made contributions under the New York State Disability Law for
all employees who were members of Respondent Local 229 while requiring non-
member employees to make their own contributions." This conduct of the Company
"was in accordance with and/or based upon an arrangement, agreement or under-
standing between [the Company] and Respondent 229 and/or . . . was part of
a practice engaged in by both."
2. Conclusions
In administering the Health Trust Fund, the Respondent purported to act as the
exclusive bargaining representative of all employees in the unit. It therefore could
not lawfully betray the trust of nonunion members by operating the fund for the.
benefit of its members only, thus leaving the nonmembers without any means of
equalizing the situation.12 It is accordingly found that, by maintaining, operating
and administering the Health Trust Fund since on or about March 18, 1957, only for'
the benefit of its members, the Respondent restrained and coerced employees of
the Company, in violation of Section 8 (b) (1) (A) of the Act.13
The arrangements, agreements, or understandings between the Company and the
Respondent whereby'the Company agreed to contribute to the Health Trust Fund
and under the New York State Disability Law only on behalf of those employees
who were members of the Respondent likewise illegally discriminated against non-
members. It is therefore found that, by enforcing these arrangements, agreements,
or understandings since on. or about March 18, 1957, the Respondent caused the
Company to discriminate against its employees in violation of Section 8 (a) (3)
of the Act,14 thereby itself violating Section 8 (b) (2) of the Act.15 Moreover, the
Respondent thereby further restrained and coerced the Company's employees in the
exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (b)
(1) (A) of the Act.
Upon the basis of the above findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. J. Radley Metzger Co., Inc., is, and at all material times has been, an employer
within the meaning of Section 2 (2) of the Act.
2. Local 229, United Textile Workers of America, AFL-CIO, is, and at all
material times has been, a labor organization within the meaning of Section 2 (5)
of the Act.
3. By maintaining and enforcing illegal union-security clauses in its contract with
J. Radley Metzger Co., Inc., and by causing J. Radley Metzger Co., Inc., to con-
tribute to the Health Trust Fund and under the New York State Disability Law
only for those of its employees who were members of the Respondent, since
March 18, 1957, thereby causing and attempting to cause J. Radley Metzger Co..
Inc., to discriminate in regard to the hire and tenure of employment and terms and
conditions of employment of its employees in violation of Section 8 (a) (3) of
11 Not otherwise identified in the complaint
12 Gaynor News Company, Inc v. N. L. R. B , 347 U. S. 17, 37-38.
is Carty Heating Corporation, et al , 117 NLRB 1417.
14 Gaynor News Company, Inc., 93 NLRB 299,' enf. as mod. 197 F. 2d 719 (C A. 2),
affd 347 U. S. 17.
's Triboro Carting Corporation, 117 NLRB 775, 788; and Local 140, Bedding, Curtain d
Drapery Workers Union, United Furniture Workers of America, 010, 109 NLRB 326, 329.
McCULLOCH MOTORS CORPORATION 1709
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
4. By this conduct, and by maintaining, operating, and administering the Health
Trust Fund since on or about March 18, 1957, only for the benefit of its members,
thereby restraining and coercing the employees of J. Radley Metzger Co., Inc., in
the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.
[Recommendations omitted from publication.]
McCulloch Motors Corporation and International Union , United
Automobile , Aircraft & Agricultural Implement Workers of
America, UAW (AFL-CIO). Case No. 21-CA-2404. June 30,
1958
DECISION AND ORDER
On March 15, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, UAW (AFL-CIO),, the Charging Party herein,
filed exceptions to the Intermediate Report and supporting briefs.
The Respondent filed exceptions to certain of the findings of the Trial
Examiner, and a brief in support of such exceptions and the Trial
Examiner's other findings and recommendations.
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 briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to extent consistent with our find-
ing, conclusions, and order hereinafter made.'
1 After the reopened hearing in this proceeding was closed on January 29, 1957, the
Respondent, on April 5, 1957, filed a motion with the Board to reopen the record for the
purpose of receiving in evidence the agenda and minutes of a meeting held between the
Committee and management on March 7, 1957. The Respondent alleges that the exhibits
are relevant and material to the issue of the Respondent's domination of the Committee
in that it shows the Committee to be an independent organization. The motion was op-
posed by the Charging Party. We deny the motion as without merit. The proffered
evidence is clearly of a self-serving nature and as such, has little, if any, probative value.
Moreover, the evidence, if received, cannot excuse the Respondent's earlier unlawful inter-
ference and assistance which we hereinafter find.
120 NLRB No. 222.