Local 1474-1, Pipe Coverers, Etc.

National Labor Relations Board - Board Decisions

May 25, 1964

147 N.L.R.B. 90 (N.L.R.B. 1964)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Central States Painting and Decorating Company is engaged in commerce
within the meaning of Section 2(7) of the Act.
3. Respondent has not violated Section 8 (b) (1) (A).
RECOMMENDED ORDER
I recommend that this complaint be dismissed in its entirety.
Local 1474-1, Pipe Coverers, International Longshoremen 's Asso-
ciation [J . Q. H. Insulating Co., Inc., and J. Q. H. Smith, d/b/a
J. Q. H. Insulating Co.] and John Hill and John Downing.
Cases Nos. 2-CB-3693-1 and 9-CB-3693-2. May 05, 1964
DECISION AND ORDER
On February 27, 1964, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Respondent filed
no exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning 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 Trial
Examiner's Decision, and the Respondent's failure to except, and has
also considered the exceptions and the brief filed by the General Coun-
sel urging an appropriate remedy more extensive than the one recom-
mended by the Trial Examiner, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following modifications :
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 1474-1
Pipe Coverers, International Longshoremen's Association, its officers,
agents, representatives, successors, and assigns, shall :
147 NLRB No. 13.
LOCAL 1474-1, PIPE COVERERS, ETC. 91
1. Cease and desist from:
(a) Causing or attempting to cause J. Q. H. Insulating Co., Inc.,
or J. Q. H. Smith, d/b/a J. Q. H. Insulating Co., or any other contract-
ing employers, to discriminate against their employees because they
had been expelled from the Respondent for reasons other than their
failure to pay the periodic dues and initiation fees uniformly required
as a condition of acquiring and retaining membership in the
Respondent.
(b) Maintaining or giving effect to article II, sections 1 and 2, of
its collective-bargaining agreement with the said employers insofar as
the said employers may be required to terminate the employment of
an employee for his failure to pay assessments or his expulsion from
membership for reasons other than his failure to tender the periodic
dues and initiation fees uniformly required as a condition of acquir-
ing and retaining membership in the Respondent.
(c) Maintaining or giving effect to the terms of the Trust Indenture
agreement with the said employers limiting benefits thereunder to
members of the Respondent.
(d) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the policies of the Act :
(a) Notify the said employers that it has no objection to the hire
of employees John Hill and John Downing.
(b) Make whole employees John Hill and John Downing in the
manner set forth in the section of the Trial Examiner's Decision en-
titled "The Remedy."
(c) Post at its office and at the office of all contracting employers,
they being willing, copies of the attached notice marked "Appendix" 1
Copies of such notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receipt
thereof at the location of any contracting employer willing to post
the same, and be maintained by them for 60 consecutive days there-
after, 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.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF J. Q. H.
INSULATING CO., INC. AND OTHER CONTRACTING EMPLOYERS
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 attempt to cause or cause J. Q. H. Insulating Co.,
Inc., and J. Q. H. Smith d/b/a. J. Q. H. Insulating Co., or any
other contracting employers, to discriminate against their employ-
ees because they had been expelled from Local 1474-1, Pipe Cov-
erers, International Longshoremen's Association, for reasons other
than their failure to pay the periodic dues and initiation fees uni-
formly required as a condition of acquiring and retaining mem-
bership in the union.
WE WILL notify J. Q. H. Insulating Co., Inc., and J. Q. H. Smith
d/b/a J. Q. H. Insulating Co., and other contracting employers,
that we have no objection to the employment of John Hill and
John Downing.
WE WILL NOT maintain or give effect to article II, sections 1 and
2, of our collective-bargaining agreement with the said employers
insofar as the said employers may be required to terminate the
employment of an employee for his failure to pay assessments or
his-expulsion from membership for reasons other than-nonpay-
ment of dues.
WE WILL NOT maintain or give effect to the terms of the Trust
Indenture agreement with said employers limiting the benefits
'thereunder to our members only.
AVE WILL make whole John Hill and John Downing for earnings
they lost as a result of their discharge on April 8, 1963, from
J. Q. H. Insulating Co., Inc., or J. Q. H. Smith d/b/a J. Q. H.
Insulating Co., until April 18, 1963, and will give them the dif-
ference in their pay, in the period April 18 to May 29, 1963, be-
tween what they would have earned had they been employed
at the 56th Street job and what they did earn in the same period
while working on the Shadwell, and will make. them whole for
any backpay they lost -as a result of the completion,of the work on
the ShadeveUL on May 29, 1963, and their failure to be hired there-
after-on the 56th Street job. -
LOCAL 1474-1, PIPE COVERERS, INTERNATIONAL _
LONGSHOREMEN'S ASSOCIATION,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
. LOCAL 1474-1, PIPE COVERERS, ETC. 93
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any questions con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case heard before Trial Examiner George L. Powell at New York, New York,
on September 16 and 17, 1963,1 pursuant to a charge filed by John Hill on April
8, amended August 14, and by John Downing on April 8 and a consolidated com-
plaint issued August 15, presents two issues : whether Respondent caused or at-
tempted to cause the discharge of employees Hill and Downing and whether a
certain trust agreement and collective-bargaining agreement are illegal . The Re-
spondent's answer denied the allegations of the consolidated complaint. For rea-
sons detailed below, I answer both questions in the affirmative.
Upon the entire record in the case, including my observation of the witnesses,
and after due consideration of oral argument made by counsel for the parties,2
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
J. Q. H. Insulating Co., Inc., a New York corporation and J. Q. H. Smith, d/b/a
J. Q. H. Insulating Co., an individual proprietorship,3 are, and- at all times material
herein have been, affiliated businesses with common ownership, directors, and op-
erators and constitute a single integrated business enterprise, herein called the Em-
ployer. The Employer has maintained his principal office and place of business
in Brooklyn, New York, and at various jobsites in the State of New York where it
is engaged in installing marine insulation and in performing related services. The
Employer annually receives directly from outside the State of New York over
$50,000 worth of materials and annually performs services valued in- excess of
$50,000 for various enterprises in States 'other than New York Further, the ^ Em-
ployer annually furnished services in excess of $500,000, which services had a sub-
stantial impact on the national defense. On these facts I find that the Employer
is and has been at all times material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE. LABOR ORGANIZATION INVOLVED
I find, and it is admitted by the parties, that the Respondent,4 Local 1474-1,
Pipe Coverers, International Longshoremen's Association , is and has been at all times
material herein a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence as to the discharge of Hill and Downing
1. Background
John Hill and John Downing are highly competent pipe coverers. They were
both members of Respondent since it started in April 1944, until both were ex-
1 All dates herein refer to 1963 unless otherwise noted.
2 The parties did not file briefs.
8 The complaint was amended at the hearing to add this party.
* At the bearing Respondent's counsel moved to add Employer as a Respondent on the
ground that any backpay liability should be shared. This was opposed by the General
Counsel. Ruling on the motion was reserved and is hereby denied. The General Counsel
has the sole responsibility for the issuance of complaints. As the addition of Employer
as a joint respondent would have the effect of amending the complaint, such addition
comes within the jurisdiction of the General Counsel to be exercised in his sound discretion.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pelled in September 1962. When expelled, Hill was Respondent's president, which
position he had held for 12 to 13 years. On the other hand, Downing had been
secretary for Respondent for about 15 years. Both had worked for the Employer
off and on over the years.
From January 1962 until May 1962, work in the industry was not plentiful, Hill
testifying that he only received a day here and a day there in February and March
although at the beginning of the year he had worked for the Employer. Both men
went to New Jersey, in the jurisdiction of Local 32 of the Asbestos Workers, and
after "shaping up" went to work for Wallace in June 1962. Downing was a foreman
there.
Frank White, delegate of Respondent, sent a letter dated August 13, 1962, to
Hill notifying him as follows:
Report for work on the Calhan located at Bethlehem Ship Yard 56 St. Brooklyn
for J. Q. H. Insulating Co. On Wednesday August 15th at 8 am 1962 and if
possible sooner.
Hill did not report as ordered. He had been persuaded by Wallace to stay until
the end of the month when reminded that Wallace gave him work when he, Hill,
had no work. Hill called J. Q. H. Smith, who actively manages the Employer, told
him his problem, and was advised by Smith to call up when finished at Wallace .5
Within a month Hill received a card from White, dated September 14, 1962,
notifying him he was expelled from Respondent ". . . for failure in returning to
work for our contractors after duly being notified to do so."
At the first meeting of Respondent on the following month both he and Downing
attempted to pay White their dues. This was October 4, 1962. White refused
the dues and refused to let them in the meeting.6
Later the same month he received a letter, dated October 8, 1962, signed by
four members of the Respondent's executive board, including White, ordering
him to "show cause at 8 a.m. on October 13th 1962 ...as to why you should not
be removed from your office as an officer of Local 1474-1 on three charges."
Among the charges was the "refusal to return to work with contractors who are
parties to our union agreement."
Hill did not appear. Then he received a letter from White dated October 13,
1962, notifying him ". . that you are expelled from Local 1474-1, Pipe Coverers
as per ruling rendered by Executive Committee on the above date [October 13]
at your hearing on charges brought against you, that you were notified of but did
not attend and that you ignored completely.
Hill sent in his dues of $20 per calendar quarter by money order by registered mail
but they were refused in each instance. The dues for October, November, and
December, 1962, were mailed in December; those for January, February, and
March, 1963, were mailed in March; and those for April, May, and June were
mailed in June 1963.
John Downing's experience with Respondent was similar to that of Hill's. As
noted earlier, he and Hill both started work for Wallace in New Jersey at the same
time. He, like Hill, was sent a letter dated August 13, 1962, notifying him to
report to work but unlike Hill he never accepted receipt of it. But he did get a card
in September similar to Hill's that he had been expelled. Also, like Hill, he at-
tempted to pay his dues on October 4, 1962, and quarterly thereafter but all at-
tempts failed when their acceptance was refused. He received a letter dated October
13, 1962, identical to Hill's that he was expelled from Respondent.
2. Working for Smith
Hill testified that he and Downing finished up their work for Wallace on April 2,
1963, and he telephoned Smith for work on April 7. Smith needing more men than
5 Hill testified that Smith told him he did not exactly need him when he first called.
Smith, on the other hand, testified that he needed and wanted both Hill and Downing to
go to work. I credit Smith and find Hill and Downing in fact were needed to work for
Respondent.
a Hill credibly testified on this point as follows: "I remember Joe Berry standing in the
door and asking White does he want us, and White saying he don't want us, we don't be-
long there ." Joe Berry is the president of Respondent.
LOCAL 1474-1, PIPE COVERERS, ETC.' 95
the Respondent could supply, told them-to report to work the following morning on
the ship Alstead on pier 15 . Smith also told Hill to bring two other men, Rohm and
Hollywood, with whom he and -Downing had been working for Wallace. Rohm
and Hollywood were also nonunion men. Pursuant to Smith 's instructions, Hills
Downing, Rohm, and Hollywood reported for work on the Alstead to the snapper,
doe Ortutay, who showed them what to do. Eddie Nelson, a member of Respondent
as was Ortutay, was also there. They began working and Ortutay went on deck.
At "about ten after eight in the morning ," according to President Berry, Ortutay
and Berry were together when Berry saw Hill and Downing . Berry asked Ortutay
if Hill and Downing were "working here." And when Ortutay replied, "Yes," Berry
told him, "I'm going, so , I quit."
Ortutay then came back to where Hill and Downing were working and told them
he had to leave the job because Hill and Downing were there .7
Then Smith and his son came to where they were working where Smith told Hill
"they [Respondent] are stopping all the jobs. I'm afraid they are going to, stop the
one down on 56th 8 and then I'm in trouble." 9
Smith then asked Ortutay to stay but was told by Ortutay, "I have to leave the
job. I'm not allowed to work here with non-union men." Smith replied, "What do
you mean, you have been working with non-union men down on 56th Street for the
past month or so."
Ortutay turned to Eddie Nelson and said, "you have to come, too, you are a union
man.,,
Later on that same morning Smith came back to Hill and told him he would have
to let him go because he should not jeopardize his jobs for two men. Hill told him
there were four nonunion men on the job, i.e., himself , Downing, Hollywood, and
Rohm, who would have to leave. Smith told him that he had spoken to Diamond,
Respondent's secretary , and Berry, Respondent's president , who told him anybody
could work there but Hill and Downing . Whereupon Hill and Downing "left' and
went up to the Labor Board."
The above is based primarily on the credited testimony of Hill, corroborated in by
Downing and Smith.
Smith credibly testified that Berry told him on the morning of April 8, that
if he did not lay off Hill and Downing ". . they were pulling all the other men off
the job, and that they would lay off Bethlehem 56th Street."
Smith's son, Malcolm, credibly testified that Berry and the union men left the
,Alstead and went to the 56th Street pier on the morning of April 8. Then he and
his father went to the 56th Street job where Smith told the men (Berry and Diamond
were present) to go back to the job on Alstead as he was going to let Hill and
Downing go. The men agreed and went back to work. Malcolm Smith was unable
to identify any men there who worked on the 56th Street job. As this corroborates
the testimony of Berry and Diamond , I find there was no work stoppage at the 56th
Street job on April 8, 1963.
Diamond testified that Berry told him, when Berry came to the 56th Street job
where Diamond was working on the morning of April 8, that he (Berry) left the
Alstead because he did not want to work with Hill and Downing.1°
Berry also told Diamond he was fired. Respondent's defense to the April 8 oc-
currence is that Berry and Lewis, Senior, left the Alstead because they were fired and
not because of any union action against Hill and Downing . I find no merit in this
defense. It is incredible under the facts adduced.
7 The timing is based upon Hill's credited testimony that "twenty to twenty-five minutes
elapsed between when Ortutay showed the men what to do and went on deck until he re-
turned to say he had to leave." According to Berry's testimony it would have been
within this 20- to 25-minute period when he told Ortutay that he, Berry, was quitting.
s This, was a large job on a missile ship.
9 Smith credibly testified that Frank White, Respondent 's delegate, bad told him before
he had hired Hill and Downing , that ". . if I hired them , that nobody would work
with them; he was going to take my men off the job." ".. . they were no longer in the
union and . . . I should not hire them."
10 Diamond testified.,
Q. And that was the reason for his leaving [the Alstead] ?
A. [Diamond ] That's right.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Credibility
Berry was an evasive and an often confused and inconsistent witness.ii
Berry testified in a manner of extreme dislike for Hill and Downing. He appeared
to be so biased that I do not credit him when his testimony conflicts with that of
witnesses for the General Counsel. I will set out one illustration of his unreliability.
He testified that immediately after being "fired" on the morning of April 8 he went
home, ran an errand, and returned to the 56th Street job around 11:30 a. In. But a
witness on his own side of the case, namely, Lewis, Senior, testified that he and his son
drove Berry from the Alstead directly to the 56th Street job. Their testimony cor-
roborates that of other witnesses as to time and is more reliable.12 Berry is not a
credible witness.
n An example of his inconsistency is his testimony on direct examination, that he
brought up the names of Hill and Downing to Smith on April 8, and then on cross-
examination that he did not, but that Smith did.
Berry's testimony on direct examination is as follows:
Q. After you left the pier [Pier 15 where the ship Alstead was tied up], what did
you do? -
A. I went home. I packed my bag and went home.
Q. Did you talk to Mr. Smith on the day that you left the Alstead? -
A. The day that I left Alstead, yes. I met Mr. Smith coming down the pier,
so he said, "where are you going?" I said, "I am going home." I said, "you got Hill
and Downing up there." I said, "and I don't work with them." "Now," I said,
"you can keep them on there, do what you want with them, but I'm going back to
56th Street."
On cross-examination Berry testified as follows:
Q. Going back to the Alstead, Mr. Berry, when you left the ship and you met
Mr. Smith, what were your words, your exact words, if you can recall?
A. He said, "I got Hill and Downing up there." I says, "I know you have, but
I'm going. So long."
Q. Who brought up the subject of Hill and Downing?
A. He did. Walking down the dock.
Q. He just all of a sudden brought up Hill and Downing?
A: Oh, yes.
Q. That's the first thing he said to you?
A. Yes, sir, that's the first thing he said.
Q. (By Mr. BERNSTEIN.) This was prior to the time th4t you told him you were
walking off the ship, is that right?
A. Yes.
Q. Don't you recall that on direct testimony you said that you told Mr. Smith that
you were going home because he had Hill and Downing working on the job?
A. On direct testimony I said-
Q. In other words-
A. There was a conversation something to that effect. The reason I went off the
ship is because Hill and Downing was there. There is no getting away from that.
That I told you.
Q. But now you are saying it was Mr. Smith who brought up their names, is that
right'
A. When he came down the dock he let it be known that Hill and Downing was
there.
Q. So it wasn't you who brought up the topic?
A. No, it wasn't I who brought up the topic.
Q. So your statement on direct testimony wasn't correct, is that right?
Mr. MIsciio [Respondent's counsel ] : I don't know if that's a fair conclusion.
A. I told him I wasn't going to work on the ship as long as they were there, and
that was it.
12 Hill and Downing place, the time of their discharge at 10:30 after Smith had talked
to Berry and Diamond and the men from pier 15 at the 56th Street job. Diamond, an-
other Respondent witness, places the time Berry talked with him on April 8 at 9 a.m. "or
a little after that."
LOCAL 1474- 1, PIPE COVERERS, ETC. 97
On the other hand, as it is against Smith's own interest to have testified as he did,
greater weight is -attached to his testimony. In this respect let it be said that Smith
is in the nature of being an unwilling participant in this matter and is not the moving
or motivating party. Smith and his son testified with apparent reluctance, but being
under oath, appeared to testify completely as to matters within their own knowledge.
It was obvious that they would have preferred being elsewhere, but their testimony
was needed by the U.S. Government and accordingly was brought out in the usual
course of events by the General Counsel in doing his duty.
B. Conclusion -as to the April 8 occurrence
The Act provides certain rights to employees and makes illegal certain conduct
by employees and labor organizations as follows:
RIGHTS OF EMPLOYEES
SEC. 7. Employees shall have 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
shall also have the right 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).
UNFAIR LABOR PRACTICES
SEC. 8 . (a) It shall be an unfair labor practice for an employer-
* * * * * *
(3) by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any
labor organization .. .
* * * * * * *
(b) It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of their rights
guaranteed in section 7: Provided, That this paragraph shall not impair the right
of a labor organization to prescribe its own rules with -respect to the acquisition
or retention of membership therein .. .
(2) to cause or attempt to cause an'employer to discriminate against an
employee in violation of subsection (a) (3) or to discriminate against an em-
ployee with respect to whom membership in such organization has been denied
or terminated on some ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a condition of acquiring
or retaining membership .. .
I find that Berry, acting as president of Respondent, led the union members off
the Alstead in an attempt to force Smith to fire Hill and Downing. His quit was the
signal to Ortutay to quit and tell others. Proof of this conclusion is the conduct of the
members. Ortutay, Eddie Nelson and Lewis, Senior, and Lewis, Junior, all union
members, had no compunction in working with nonunion members Hill, Downing,
Rohm, and Hollywood when they first appeared for work. It was not until after
Ortutav had instructed them in what to do and had gone up on deck and met Berry and
heard Berry say he was quitting that Ortutay "decided" not to work with Hill and
Downing. At that time he also told Eddie Nelson not to work with them. At no time
did any officers or members of Respondent refuse to work with Rohm and Hollywood,
and credited testimony is that union members worked with nonunion members until
Hill and Downing were hired. Lewis, Senior, testified he was all set to work with
Hill and Downing until Berry refused to do so. There is also direct proof.
Respondent's delegate, White, President Berry, and Secretary Diamond had told
Smith that anybody could work there other than Hill and Downing, and White had
told him that "he was going to take" his union men off the job. if Hill and Downing
were there. Also Berry himself told Smith on the morning of April 8 that if he,
Smith, did not fire Hill and Downing, they were pulling all the other men off the job
and would stop the 56th Street job also. The actions of union official Berry and
union members Ortutay, Nelson, and the Lewises is consistent with this threat and give
it meaning and substance. Berry's action in refusing to work with Hill and Downing
triggered the work stoppage by members of Respondent on April 8. As Berry was
president of Respondent, his actions bind the Respondent.
756-236-65-vol. 147-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The "Shadwell," April 18 to May 29, 1963
Both Hill and Downing were out of work from April 8 until April 18, 1963, al-
though they "shaped up" at, Local 32 in New. Jersey and applied for employment.
On April 17, Hill received a telephone call from one of the National Labor
Relations Board investigators who told him that Respondent's counsel, Mischo,
had told the Board that Respondent had no objection to Hill and Downing work-
ing. Hill called Mischo who told him to tell Smith that he "could go back to work
and nobody was supposed to bother" him. Hill relayed this message to Smith
and wanted to work on the 56th Street job but instead both he and Downing were
sent to and worked on the Shadwell. They worked there from April 18 until com-
pletion of the job on May 29. During this interval they both asked ,many times
for work on the 56th Street job because of the opportunity to make overtime
pay there, whereas they received little overtime on the Shadwell.13 Smith credibly
testified that, "Frank White didn't want any part'of them on that ship [56th Street
job], and I know that I would have had a slowdown, or maybe they would all
quit, so why put your foot in the fire?" He told Hill and Downing why- he could
not hire them on at the 56th Street job. The reason: It would "cause a union
rumpus." White told Smith not to bring them to the 56th Street job.
Even during the time Hill and Downing worked on the Shadwell, Smith was not
free of pressure by the Respondent. White had told Smith that Hill and Downing
could work so long as Smith had nothing but nonunion men on the Shadwell.
Then on April 25, White sent Berry to be the snapper on the Shadwell because
there were some union helpers working there. Hill had been the snapper since
April 18, but he gave the necessary specifications to Berry when requested by
Smith to do so. But Hill and Downing worked without Berry's snapper supervision.
Finally Berry left and Hill snapped the whole job. Even then the union helpers
refused to carry material to him but would carry material to Downing _ and they
refused to submit to Hill's snapper authority.
I find the above pressure by Respondent to be an attempt to cause the discharge
of Hill and Downing because they were not members of the Union and their mem-
bership was denied for reasons other than the nonpayment of dues. Likewise I
find this pressure by Respondent to have been the cause why Smith never gave Hill
and Downing a job on the 56th Street job where they would have been able to
earn more money by virtue of overtime and Saturday and Sunday work. This
violates Section 8(b) (2) and (1) (A) of the Act.
D. The Trust Indenture
By virtue of the Trust Indenture agreement between Respondent and, among others,
J. Q. H. Insulating Company and J . Q. H. Smith , the named employers were to pro-
vide certain group life , accidental death and dismemberment , accident and health,
and hospital and surgical benefits in the form of insurance "for such employees of
the Employers as is determined by membership in good standing in [Respond-
ent], . and who have worked 500 hours or more during the previous six months
and shall thereby be eligible for insurance on the effective date of the policy." [Em-
phasis supplied.] • Future employees were eligible to these benefits if they met
these two conditions : ( 1) membership in Respondent, and (2 ) worked a minimum
of 500 hours during the previous 6 months.
Hill and Downing had qualified and were covered under the Trust Indenture
until they lost their union membership , at which time they were notified by the insur-
ance carrier that they were no longer covered . 14 Additionally both Hill and Down-
ing credibly testified that they had worked the necessary 500 hours in 1962-to
qualify under the Trust for 1963.
It is well established that a labor organization violates Section 8 (b) (1) (A) and
(2) of the Act by maintaining and enforcing a contract which unlawfully dis-
criminates against employees who were not union members with respect to the payment
of welfare fund benefits . (See Cary Heating Corporation, et al., 117 NLRB 1417,
1418 .) Inherent in such discriminatory provisions is the tendency to encourage
's Smith testified that work at the 56th Street job "as a rule" was a "10- to 12-hour day,
Saturday and Sunday, but not always." On the Shadwell.it was a normal 8-hour
day ". . . toward the last they put a Saturday and maybe a Sunday in, but very little
overtime."
. 14 The General Counsel introduced into evidence General Counsel's Exhibit No. 12 which
was the insurance contract for "members" of Respondent. Termination of membership
was provided as one ground for the automatic termination of insurance coverage. Like-
wise a failure to complete 500 hours of active service within a calendar year would
terminate the policy on the last day of the calendar year.
LOCAL 1474-1, PIPE COVERERS; ETC. 99
membership in a union in violation of the Act. (See County Electric Co,., Inc.,
et al., 116 NLRB 1080.) Similarly the Act is violated in Section 8(b)(1)(A) and
(2) if the discrimination between union and nonunion members is with respect to
insurance benefits.
Discrimination that encourages membership in a labor organization is outlawed
by Section 8(a) (3) of the Act, and any labor organization that causes or attempts
to cause an employer to discriminate against an employee in violation of Section
8(a)(3) of the Act, violates Section 8(b)(2) of the Act. Likewise a benefit, such
as insurance, held out by a labor organization for members as against nonmem-
bers of the organization restrains and coerces employees in the exercise of the rights
guaranteed them in Section 7 of the Act because the proffered benefit blinds the free
judgment of the employee so necessary in exercising his rights.ls
E. The agreement
The General Counsel alleges in the consolidated complaint, referred to above,
that ,the collective-bargaining agreement between Respondent and the parties to
the contract contains provisions which require the payment of assessments as a
condition of employment which provisions do not comply with the requirements of
Section 8 (a) (3) of the Act.
As proof of this allegation, the General Counsel introduced into evidence the
collective-bargaining agreement and the constitution and bylaws of Respondent.
Article II of the Agreement provides, inter ilia:
ARTICLE II
SECTION 1. As of the effective date of this Agreement, the Company shall
require as a condition of employment that all employees within the bargain.
ing unit shall be and shall remain members of the Union in good standing and
that all persons hired thereafter shall as a condition of their employment, within
thirty (30) days after said hiring, become and remain, members of the Union
in good standing... .
SEC. 2. The Union agrees that it will not request the Company to terminate
the employment of any person under Section 1, hereof, for any reason other
than his failure to tender his regular dues, assessments and initiation fees uni-
formly required as a condition of the Union membership or expulsion from
the Union. [Emphasis supplied.]
Section 8(a) (3) of the Act permits an employer to discharge an employee under
a valid union-security contract if he is not a member of the union and if membership
in the union was denied or terminated for his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring or retaining
membership. But a discharge for loss of membership for other reasons is forbidden,
and Section 8(a) (3) of the Act is violated when such discharges are made. This is
well-established law, the citation of authorities for which is unnecessary. Should a
union request such a discharge, this request would be an attempt to cause an unlaw-
ful discharge under Section 8(a)(3) in violation of Section 8(b)(2) and the request
would restrain and coerce employees in violation of Section 8(b)(1) (A) of the
Act.
Hence when the very contract on its face provides that employees must be and
remain members of the union in good standing and then provides for the possibility
the union can request the employer to discharge an employee for failure to pay
assessments, the contract is against the public policy and is illegal on its face.
Additionally, the contract in the instant case provided that the Union could request
an employee's discharge if he had been expelled from the Union with no strings at-
tached as to'the reason for the expulsion. This, too, is too broad and is against
the public policy. The Union's constitution and bylaws provides many ways in
which a member can lose his membership and a request for discharge based on any
of these, except the failure to tender periodic dues would violate Section S(b) (2)
and 8(b) (1) (A) and the clause itself would violate Section 8 (b) (1) (A) .11
35 See the analysis of how employers violate Section 8(a) (3) of the Act in disparate
treatment of employees based on union membership in Northeast Coastal, Inc., 124 NLRB
441 at 449, et seq.
16 Article XIII of Respondent's constitution and bylaws, in evidence, provides, in part:
SECTION 1. Any member who was dropped from the Union for non-payment of dues,
assessments, or any reason . . .
Thus it is clear that loss of membership can come from failure to pay assessments and
for other reasons and loss of membership for these reasons does not protect the union
from violating the Act if requests for discharge were permitted based thereon.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I shall recommend that Respondent cease and desist
from the unfair labor practices found, and from any other invasions of employee
rights under the Act, and cease and desist from carrying out the provisions of the
certain terms in the collective-bargaining agreement and in the trust agreement which
have been found violative of the Act. The breadth of the order seems appropriate as
discrimination as to job tenure goes to the heart of the Act and hence suggests a
predisposition to invade the rights of employees in other respects. N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). Affirmatively, I shall recommend
that Respondent makes whole employees John Hill and John Downing for loss of
earnings between April 8, 1963, until April 18, 1963, and makes employees Hill and
Downing whole for the difference between what they would have earned had they
been employed on the 56th Street job and what they earned while employed on the
Shadwell from April 18 to May 29, and make them whole for loss of earnings there-
after they may have had by not working at the 56th Street job. In addition I will
recommend that Respondent notify Employer and all other signatories to the
collective-bargaining agreement involved that it has no objection to their hiring em-
ployees Hill and Downing in the future. All of the make-whole remedy will be in
accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716, in which 6 percent interest is called
for. I shall also recommend the posting of an appropriate notice.
CONCLUSIONS OF LAW
1. Employer is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent engaged in an unfair labor practice affecting commerce within the
meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act by
the following:
(a) By attempting to cause and causing the discharge of John Hill and John
Downing on April 18, 1963, for the reason they were nonmembers of Respondent and
their loss of membership was due to something other than their failure to tender their
periodic dues.
(b) By attempting to cause and causing the Employer not to hire John Hill and
John Downing on April 18, 1963, and thereafter, for work at Employer's job on
56th Street for the same reason as in paragraph (a) above.
(c) By entering into and maintaining in force a collective-bargaining agreement
with Employer which (1) required the payment of assessments to maintain member-
ship in good standing; (2) permitted Respondent to -attempt to cause and cause the
discharge of employees who lost their membership in good standing for reasons
other than failure to tender their periodic dues.
(d) By entering into and maintaining a trust agreement providing for benefits
to be paid solely to union members.
[Recommended Order omitted from publication.]
Bonded Armored Carrier, Inc. and Truck Drivers and Helpers
Local Union No. 355, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. Case
No. 5-CA-93485. May 05, 1964
DECISION AND ORDER
On January 10, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in the unfair labor practices alleged in the com-
147 NLRB No. 14.