Local 392, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Dec 19, 1958

122 N.L.R.B. 613 (N.L.R.B. 1958)

LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 613
of employment , and other conditions of employment , and if an understanding
is reached , embody such understanding in a signed agreement.
WE WILL reinstate and make whole the following employees for any loss of
pay suffered by them as a result of our discrimination against them:
Randall Carson Samson Logan
Bernard Collins Percy Maddry
DeWitt Jones William Thomas
All our employees are free to become or remain members of Local 596 or any
other labor organization or to refrain from such membership , except to the extent
that this right may be affected by an agreement authorized by Section 8(a)(3) of
the Act.
VINCENT J . MILLER and FERDINAND LEARDI
d/b/a BILTWELL TRAILER COMPANY,
Employer.
Dated------- ------------ By-------------------------------------------
(Vincent J . Miller)
Dated------------------- By-------------------------------------------
(Ferdinand Leardi)
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 392, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO and Morton H. Baker and
Schenley Distillers, Inc., Party to the Contract
Schenley Distillers, Inc. and Local 392, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO.
Cases Nos. 9-CB-304 and 9-CA-1045. December 19, 1958
DECISION AND ORDER
On October 25, 1956, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Re-
spondent Union had not engaged in certain other practices alleged
in the complaint. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and additions.
122 NLRB No. 61.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found and we agree that the Respondent
Company violated Section 8(a) (1) and (3) of the Act by condi-
tioning Baker's employment upon the Respondent Union's approval
and denying employment to Baker because the Respondent Union
failed to grant approval. He also found, and we agree, that the
Respondent Company violated Section 8 ( a) (1) and ( 3) and the
Respondent Union violated Section 8(b) (1) (A) and (2) of the Act
by executing a contract containing a union-security provision at a
time when the Union was not in compliance with the filing require-
ments of Section 9(f), (g), and (h) of the Act.
The Trial Examiner further found that the Respondent Union did
not violate Section 8(b) (2) by causing or attempting to cause the
Respondent Company to discriminate against Baker in refusing to
hire him, and recommended that such allegations of the complaint
be dismissed. The General Counsel's exceptions are directed to this
finding and recommendation of the Trial Examiner, and we find
merit in the exceptions.
As detailed in the Intermediate Report, immediately before the
crucial events concerning the refusal to hire Baker, the Respondent
Company's plant was shut down while maintenance work was per-
formed by a local contractor . Before the shutdown , it had been the
Respondent Company's practice when it needed pipefitters and
skilled mechanics to request them from the Respondent Union.
When the plant was ready to reopen , the Respondent Company and
the Respondent Union begain negotiations for a bargaining contract.
During these negotiations, on October 18, 1955, the Respondent
Company expressed to the Union its desire to retain in its employ
the crew of the contractor who had handled its maintenance work
and who would be the employees for which the Respondent Union
was negotiating the contract. At that time the Respondent Union
opposed the hire of Morton H. Baker , who worked in the contractor's
crew, because he was not a member of the Respondent Union's
Local, and informed the Respondent Company that they "did not
care who they hired as long as they hired members of Local 392."
At other times thereafter the Respondent Union repeated its posi-
tion concerning Baker and refused to approve his employment.
The record is clear that the Respondent Company would have
hired Baker on December 21, 1955, but for Respondent Union's
position that members of Local 392 should be given preference over
nonmembers such as Baker . Indeed, Respondent Company's super-
vising engineer, Daniel P. Fleming, testified that while negotiating
a contract with Respondent Union the latter informed the Company
that Baker could not be hired "under that contract." James E.
Maher, business agent for Local 392, admitted on cross-examination
that he objected to the hiring of Baker on the ground that he was
LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 615
not a member of the Local. In response to counsel's question as to
the position he had taken when informed by company representatives
that they were about to hire Baker and Reamer,' Maher stated:
"I objected to it. I said that we wanted members of 392 there.
That Reamer and Baker were not members of our Local Union."
Elsewhere in the record Maher denied that his objection went to the
hire of Baker and contended that he objected merely to recommend-
ing Baker for hire by the Company. The Trial Examiner found
the distinction immaterial.. He recommended that the complaint be
dismissed to the extent it alleged that the Respondent Union had
caused the Company to refuse to hire Baker on the ground that the
Union did not "threaten retaliation" and no understanding existed
for the exclusive referral of employees by the Union. In our opinion
the evidence in this case is sufficient to find, and we do, that the
Respondent Union's conduct amounted to an affirmative request by
the contractual representatives of Respondent Company's employees
that Baker be refused employment. Such a request, in the absence
of a lawful contract2 conditioning employment upon the approval
of a union, constitutes "cause" within the meaning of Section 8(b)
(2). Sub Grade Engineering Company, 93 NLRB 406. The record
in this case strongly suggests that the representatives of the Com-
pany and the Union were under the impression that the Union's
approval of Baker as a condition of employment was, in fact, a
requirement of their contract, even though such a requirement does
not appear in the contract itself. In explaining his statement that
the Respondent Union did not care whom the Company hired as
long as such employees were members of Local 392, Business Agent
Maher stated : "Look, maybe I can explain it this way : When we
make an agreement we make it between the members of 392 and the
company that we work for. We certainly-I as Business Agent
don't make an agreement for people out of Augusta, Georgia, or
Local 59, because each one of those outfits have got business agents
too. I'm down here fighting for our members." This testimony
comports with the testimony of Fleming, noted above, that the
Company was informed by the Union that Baker could not be hired
"under that contract." The General Counsel has not alleged and
the Trial Examiner has not found that an illegal understanding or
arrangement existed between the Company and the Union requiring
preference for members of Local 392 in employment. Accordingly,
we do not pass upon this question. Nevertheless, in finding, contrary
to the Trial Examiner, that the Union caused the Company to deny
employment to Baker in violation of Section 8(b) (2), we have
taken into consideration the fact that the Union's statements with
i No violation of the Act is alleged with regard to Reamer.
2 For the standards applicable to an exclusive referral system, see Mountain Pacific
Chapter of the Associated General Contractors , Inc., et at., 119 NLRB 883.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to Baker were made in the context of negotiations for a
contract and that both the Company and the Union proceeded under
the impression, albeit erroneous, that the latter had a legitimate
interest in the selection of employees for employment.
Accordingly, we add to the Trial Examiner's ultimate findings and
conclusions the following conclusion of law: By causing the Re-
spondent Company to discriminate against Morton H. Baker in
violation of Section 8 (a) (1) and (3) of the Act, the Respondent
Union has violated Section 8(b) (1) (A) and (2) of the Act.
THE REMEDY
Having found that the Respondent Union caused the Respondent
Company to discriminate against Morton H. Baker, we shall add
to the remedy recommended by the Trial Examiner a back-pay order
against the Respondent Union. Inasmuch as Baker was hired by
the Respondent Company on March 8, 1956, for the job he was
discriminatorily denied on December 21, 1955, and the discrimina-
tion as to hire thus ended before the Trial Examiner issued his report
in this proceeding recommending the dismissal of the 8(b) (2) al-
legation with respect to Baker, it is unnecessary to exclude from the
Respondent Union's back-pay liability the period from the date of
the Intermediate Report to the date of the Order herein.-'
In the absence of an exception, we adopt the Trial Examiner's
recommendation that no affirmative order be issued with respect to
the union-security contract entered into between the Respondent Com-
pany and the Respondent Union at a time when the Respondent
Union was not in compliance with the filing requirements of Sec-
tion 9(f), (g), and (h) of the Act.
For the reasons stated in Charles Ostrowski et al., d/b/a Phila-
delphia Woodwork Company, 121 NLRB 1642, we find that the
remedy of disgorgement of all moneys paid by employees to the
Respondent Union by virtue of the union-security clause herein is
not applicable in this case.
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:
A. The Respondent Company, Schenley Distillers, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Local 392, United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, or any
3 Cf. Utah Construction Co., 95 NLRB 196, 208.
LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 617
other labor organization, by requiring of Morton H. Baker or any
other employee clearance from, or membership in, the above-named
labor organization or any other labor organization as a condition
of employment, except to the extent that the requirement of clearance
or approval by a labor organization is lawfully imposed under
the conditions stated in Mountain Pacific Chapter of the Associated
General Contractors, Inc., et al., 119 NRLB 883.
(b) Entering into an agreement with Local 392, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, or
any other labor organization requiring membership in a labor
organization as a condition of employment, except under the condi-
tions stated in Section 8(a) (3) of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing 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) Establish December 21, 1955, as the beginning date of the
seniority status of Morton H. Baker.
(b) Jointly and severally with Local 392, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, make whole
Morton H. Baker for any loss of pay he may have suffered by
reason of their discrimination against him, as provided in the
section herein entitled "The Remedy."
(c) Preserve and make available to the Board or its agents,
upon request, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary or useful to analyze the
amount of back pay due and the rights of employment under the
terms of this Order.
(d) Post at its plant in Lawrenceburg, Ind., copies of the notice
attached hereto marked "Appendix A."4 Copies of such notice, to be
furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent Employer's representative,
be posted by the Employer immediately upon receipt thereof and
be maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Re-
spondent Employer and its representatives to insure that said
notices are not altered, defaced, or covered by any other material.
4In 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."
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at the same places and tinder the same conditions as set
forth in (d) above, and as soon as they are forwarded by the Re-
gional Director , copies of the Respondent Union's notice herein,
marked "Appendix B."
(f) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply therewith.
B. Respondent Local 392, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, its representatives, agents,
officers, successors , and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Schenley Distillers, Inc.,
Lawrenceburg, Ind., to discriminate against Morton H. Baker or
any other employee in violation of Section 8(a) (3) of the Act.
(b) Entering into an agreement with Schenley Distillers, Inc.,
or any other employer, requiring membership in a labor organization
as a condition of employment, except under the conditions stated in
Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing em-
ployees of Schenley Distillers, Inc., or any other employer in the
exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act-
(a) Jointly and severally with Schenley Distillers, Inc., make
whole Morton H. Baker for any loss in pay he may have suffered
by reason of their discrimination against him, as provided in the
section herein entitled "The Remedy."
(b) Post in conspicuous places where notices are customarily
posted in its offices and meeting halls in the vicinity of Lawrence-
burg, Ind., copies of the notice attached hereto marked "Appendix
B.75 Copies of such notice, to be furnished by the Regional Director
for the Ninth Region, shall, after being duly signed by Respondent
Union's representative, be posted immediately upon receipt and
maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Mail to the Regional Director for the Ninth Region signed
copies of appendix B for posting by Schenley Distillers , Inc., at
its plant in Lawrenceburg , Ind., for sixty ( 60) consecutive days in
places where notices to employees are customarily posted . Copies of
said notice, to be furnished by the Regional Director, shall, after
6 See footnote 4.
LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 619
being duly signed by Respondent Union's representative, be forthwith
returned to said Regional Director for such posting.
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT encourage membership in Local 392, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, or any other labor organization, by requiring of
Morton H. Baker or any other employee clearance from, or
membership in, the above-named labor organization or any other
labor organization as a condition of employment, except to the
extent that the requirement of clearance or approval by a labor
organization is lawfully imposed under the conditions stated
in Mountain Pacific Chapter of the Associated General Con-
tractors, Inc., et al., 119 NLRB 883.
WE WILL NOT enter into an agreement with Local 392, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, or any other labor organization, requiring member-
ship in a labor organization as a condition of employment,
except under the conditions stated in Section 8(a) (3) of the Act.
WE WILL establish December 21, 1955, as the beginning of the
seniority status of Morton H. Baker.
WE WILL make whole Morton H. Baker for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT in any like or related manner encourage mem-
bership in the above labor organization or any other labor
organization or otherwise interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
SCHENLEY DISTILLERS, 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.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 392, UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, AND TO
ALL EMPLOYEES OF SCHENLEY DISTILLERS, 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, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Schenley Distillers,
Inc., to discriminate against Morton H. Baker or any other
employee in violation of Section 8(a) (3) of the Act.
WE WILL NOT enter into an agreement with Schenley Distillers,
Inc., or any other employer, requiring membership in this or-
ganization , except under the conditions stated in Section 8(a) (3)
of the Act.
WE WILL make Morton H. Baker whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT in any like or related manner restrain or coerce
employees of Schenley Distillers, Inc., or any other employer, in
the exercise of the rights guaranteed them in Section 7 of the
Act.
LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF TIIE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Name and Title of Officer)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These proceedings concern an alleged discriminatory refusal to hire Morton H.
Baker and allegations that a certain union-security agreement is unlawful because
at the time of the execution of said agreement Local 392, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, herein called Respondent Union , had not
complied with the filing requirements of Section 9(f), (g), and (h) of the Na-
tional Labor Relations Act, as amended, herein called the Act.
THE FACTS
A. Concerning the refusal to hire
The Lawrenceburg , Ind., plant ( the plant involved herein ) of Schenley Distillers,
Inc., herein called Respondent Company, "was shut down for a period of ap-
proximately eighteen months, or so [immediately prior to December 20, 1955], and
LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 621
during that period no maintenance pipe fitters were retained on [Respondent Com-
pany's] payroll. Our [Respondent Company's] pipe fitting work [during the shut
down] was contracted to a local contractor, namely the Lawrenceburg Heating and
Plumbing Company." Prior to the shut-down it had been the custom for Re-
spondent Company when it "needed pipe fitters, skilled mechanics, to request them
from" Respondent Union and for Respondent Union to supply the men requested.
Also, prior to the shutdown there was a contract' between Respondent Company
and Respondent Union, the terms of which are not revealed by this record.
In September 1955, Respondent Company began "negotiating for the mainte-
nance contract with" Respondent Union and "informed the proprietor of the
Lawrenceburg Heating and Plumbing Company of our [Respondent Company's]
intent to sign such a contract" and made arrangements with the proprietor of the
Lawrenceburg Heating and Plumbing Company "to retain the fellows who had
been working with him on as our [Respondent Company's] men."
At a meeting, at which Respondent Company and Respondent Union were
endeavoring to negotiate a contract, held on October 18, 1955, Respondent Com-
pany informed Respondent Union of its desire to retain the men who were then
working with the Lawrenceburg Heating and Plumbing Company as Respondent
Company's maintenance force and either James E. Maher, business agent for
Respondent Union, or Douglas Herthel, assistant business agent for Respondent
Union, stated that Respondent Union objected to the hiring by Respondent Com-
pany of Morton H. Baker because Baker was not a member of Respondent Union.
At another negotiating meeting held on December 12, 1955, Respondent Com-
pany again expressed a desire to retain the men of the Lawrenceburg Heating
and Plumbing Company as employees of Respondent Company and again either
Business Agent Maher or Assistant Business Agent Herthel objected to the hiring
by Respondent Company of Baker because he was not a member of Respondent
Union.
There is conflicting evidence concerning the exact words used and the record
is not clear as to the precise words used in voicing the objections noted above but
it is clear that regardless of the exact language used Respondent Union did not
threaten retaliation if Respondent Company failed to heed the objections.
Sometime between December 12 and 16, 1955, Business Agent Maher and/or
Assistant Business Agent Herthel indicated to Respondent Company that their
status as representatives of Respondent Union was involved in an election then
scheduled for December 16 and that they were apprehensive about the outcome
of the election if they approved Baker for employment by Respondent Company
before the scheduled election in view of the fact that Respondent Union had some
members then unemployed, but that after the election, and if they (Maher and
Herthel) were reelected, it would probably be all right for Respondent Company
to hire Baker.
Maher and Herthel were reelected business agent and assistant business agent,
respectively, of Respondent Union.
On December 19, 1955, Daniel P. Fleming, Respondent Company's supervisor
engineer of the plant involved herein, assembled the men then in the employ of
Lawrenceburg Heating and Plumbing Company and told them about the plan to
make them employees of Respondent Company and gave them the dates upon
which they would become employees of Respondent Company. These men were
also told by Fleming that they were to report to Respondent Company's personnel
department and sign the necessary papers prior to the dates they were scheduled
to become employees of Respondent Company. Baker was told he was scheduled
to become an employee of Respondent Company on December 21, 1955.
On December 20, 1955, Baker signed the necessary papers, was given a badge
number, and was told that his card "would be in the rack in the morning."
Also on December 20, Respondent Company and Respondent Union executed
the contract hereinafter noted. On this occasion Respondent Company again sought
Respondent Union's approval to employ Baker and Respondent Union again with-
held such approval. E. P. Henderson, then regional manager for Respondent
Company, testified he could not recall the exact words that were said but that
"most likely" he (Henderson) said, "How about employing Baker?" and that
Business Agent Maher or Assistant Business Agent Herthel responded, "Not yet."
The tenor of the testimony of Maher and Herthel is that they did not object to
Respondent Company hiring Baker but merely that they would not approve of said
hiring. The Trial Examiner credits the testimony of Henderson noted above.
Furthermore, in the opinion of the Trial Examiner it is immaterial, under the
circumstances of this case (in the absence of an agreement, understanding, ar-
i Not the contract in issue herein.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rangement, or practice conditioning employment on clearance from or member
ship in Respondent Union and in the absence of threats of retaliation if Respondent.
Company did in fact employ Baker), whether Respondent Union objected to the
hiring of Baker or merely refused to approve of Baker's being hired by Respondent.
Company.
After the meeting at which the contract was signed, Henderson issued "instruc-
tions to the effect that Baker should not be put to work on the 21st."
On the morning of December 21, Baker was stopped by Respondent Company's.
foreman, Richard Smith, and told not to "punch in," that he "wouldn't be able to
go to work for Schenley" because Respondent Union had told Respondent Com-
pany that he (Baker) "wouldn't be able to go to work." The next day or the
following day, Elmer Laker, a foreman for Respondent Company, told Baker that
he (Laker) would like to have Baker come to work if he "could ever get.
straightened up with the union" and that he (Laker) thought Baker might "be
able to go to work there [at Respondent Company] after the first of the year .2
Henderson, Respondent Company's regional manager, testified credibly that on
"two, three, maybe four" occasions during January and February 1956, he talked
to Respondent Union's business agent or assistant business agent (Maher or
Herthel) and told them Respondent Company was holding a place open for Baker
and asked, "How about Baker?" and was told, "Not yet." As noted above,
Maher's and Herthel's testimony is to the effect that they did not object to Re-
spondent Company hiring Baker but merely took the position that they would
not approve of Baker's being hired by Respondent Company. This distinction
was not made apparent until the last conversation with Henderson which is noted
hereinafter. In any event, as noted above, the Trial Examiner believes it im-
material whether Respondent Union objected or merely refused to approve.
On January 30, 1956, Baker filed the charge involved in Case No. 9-CB-304..
About a week before March 8, 1956, Business Agent Maher told Respondent
Company's Regional Manager Henderson that Respondent Company knew its
rights and Respondent Union would not oppose the employment of Baker by
Respondent Company although Respondent Union would not approve of such
employment. After this conversation Henderson issued instructions to employ
Baker.
On March 8, 1956, Baker was hired by Respondent Company and given the job
which he was scheduled to receive on December 21, 1955. This record infers,.
however, that Baker's seniority standing with Respondent Company dates from
March 8, 1956, instead of from December 21, 1955, the date from which his:•
seniority would date except for the delay in the commencement of his employment.
Respondent Company admits that between December 20, 1955, and March 8,
1956, Respondent Union "attempted to cause and caused" Respondent Company
"to refuse to hire" Baker. Respondent Union denies these allegations of the.
complaint.
B. Concerning the union-security agreement
As indicated above, on December 20, 1955, the Respondents herein executed.
a contract concerning rates of pay, wages, hours of employment, and other condi-
tions of employment. This agreement contains a union-security clause reading
as follows:
All employees must become and remain members of the Union as a condi-
tion to employment thirty (30) days from the effective date of agreement or
employment, whichever is later.
The provisions of the agreement are not in issue in these proceedings. The
General Counsel attacks this agreement solely on the ground that at the time it
was signed the labor organization party to the agreement (Respondent Union)
was not in compliance with the filing requirements of the Act.
Before an agreement with valid union-security provisions may be entered into,
it is required by Section 8(a)(3) of the Act that the labor organization party to,
such agreement be in compliance with the filing requirements of the Act.
Respondent Union was in compliance with the filing requirements of the Act.
from April- 9, 1954, to December 31, 1954. On December 27, 1954, Respondent
Union was given notice of the pending expiration of its compliance status and
given until March 31, 1955, to renew its compliance. Respondent Union again
2 Henderson testified that "at one time, one period, though, one of them [Maher or
Herthell did tell me to hold up until January and they thought they would clear him
[Baker] by that time."
LOCAL 3 9 2, UNITED ASSOCIATION - OF JOURNEYMEN, ETC. 623
complied with the filing requirements on May 22, 1956, and its current status as
a complying union is not due to expire until December 31, 1956. It was not in
compliance at least from March 31, 1955, until May 22, 1956. Accordingly, at
the time the agreement involved herein was executed Respondent Union was not
in compliance but this impairment was eliminated on May 22, 1956-approxi-
mately 6 months after the execution of the agreement.
Conclusions
The facts set out above disclose that Respondent Company conditioned Baker's
employment upon Respondent Union's approval and denied employment to Baker
because Respondent Union failed to grant approval. By this conduct Respondent
Company discriminated against Baker in violation of Section 8(a)(1) and (3) of
the Act. Any contention that despite this discriminatory conduct there can be no
finding of a violation of Section 8 (a) (1) and (3) of the Act as there is no show-
ing of encouragement or discouragement of union membership lacks merit. Radio
Officers' Union, etc. v. N.L.R.B., 347 U.S. 17.
While the facts disclose that Respondent Company conditioned employment on
clearance from, or membership in, Respondent Union, they do not disclose that
Respondent Union was a party to any agreement, understanding, arrangement, or
practice requiring clearance from, or membership in, Respondent Union as a
prerequisite for employment, unless such can be inferred.
The evidence discloses that Respondent Union, as a matter of policy, refused
to issue clearances for employment to any person not a member of this union
when its own members were out of work, that Respondent Union made known
this policy to Respondent Company, and that Respondent Union refused to clear
Baker for work or objected to Respondent Company employing Baker on the
ground that it had members then unemployed. Furthermore, from the evidence
adduced it appears that Respondent Union realized that Respondent Company was
following a policy of conditioning employment upon Respondent Union's approval
and would not employ Baker without its approval, or over its objection. Never-
theless, there is no evidence that Respondent Union caused Respondent Company
to be under an impression that hiring Baker might cause friction or possibly
retaliation and the evidence adduced does not warrant an inference that Baker
was denied employment pursuant to a prearrangement between Respondents con-
ditioning employment on clearance from, or membership in, Respondent Union.
Such an inference would have to be based upon Respondent Union's awareness
of what Respondent Company was doing and upon its failure to advise Respondent
Company (as it finally did) that Respondent Company could employ Baker despite
Respondent Union's objections. Such conduct, under the circumstances revealed
by this record, does not add up to an agreement, understanding, arrangement, or
practice' between the Employer and the Union conditioning employment on ap-
proval by the Union, and Respondent Union was not required to take a position
concerning Respondent Company's employment of Baker or to disabuse Respondent
Company of any impression it may have entertained that employing Baker over
the objection, or without the approval of, Respondent Union might result in
friction or possible retaliation. N.L.R.B. v. Thomas Rigging Co., 211 F. 2d 153
(C.A. 9), cert. denied 348 U.S. 871.
In view of the foregoing, the Trial Examiner recommends that the allegations
of the complaint to the effect that Respondent Union caused or attempted to cause
Respondent Company to refuse to hire Baker be dismissed.4
As noted above, Respondents executed and now have outstanding an agreement
containing union-membership conditions of employment and at the time of the
execution of said agreement and for approximately 6 months thereafter, Respond-
ent Union was not in compliance with the filing requirements of the Act. The
execution of such a contract under such circumstances is violative of Section
8(a)(1) and (3) of the Act by the Company and of Section 8(b)(1)(A) and (2)
of the Act by the Union." However, since the Union is now in compliance, a
question arises as to whether all or part of this contract should be set aside or
whether the purposes of the Act would be adequately effectuated by requiring that
Respondent Union's conduct herein is too isolated to support a finding of an agree-
ment, understanding, arrangement, or practice.
The Trial Examiner believes and finds that the facts herein distinguish this matter
from N.L.R.B. v. International Union of Operating Engineers, etc. (Sub Grade Engineer-
ing Co.), 216 F. 2d 161 (C.A. 8), and from Frommeyer cf Company, 114 NLRB 872.
624 DECISIQNS OF NATIONAL LABOR RELATIONS BOARD
the Respondents cease and desist from engaging in the unfair labor practices
found.5
One of the objectives of the Act is to stabilize industrial relations and this
Board endeavors to encourage a reasonable stability in existing bargaining rela-
tionships-the Board 's 1-year rule with reference to certifications is based on these
principles.
In view of the fact that the impairment of noncompliance has now been elim-
inated and there is no contention that the contract under consideration has been
used in such a fashion as to give the Union an unlawful advantage , and since the
parties could now lawfully execute an agreement identical to the one involved
herein , the Trial Examiner believes a negative order adequate to effectuate the
policies of the Act and in keeping with the objective of the Act to achieve stable
industrial relations.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary , the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board 's requirements
for the assertion of jurisdiction herein.6
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. By conditioning employment on clearance from , or membership in, Re-
spondent Union and denying employment to Morton H. Baker because Respondent
Union failed to grant clearance , Respondent Company violated Section 8(a)(1)
and (3) of the Act.
4. By executing an agreement containing union-membership conditions of em-
ployment at a time when the labor organization party to the agreement (Re-
spondent Union) was not in compliance with Section 9 (f), (g), and (h) of the
Act, Respondent Company violated Section 8(a)(1) and ( 3) of the Act and
Respondent Union violated Section 8 (b)(1)(A) and (2) of the Act.
5. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The evidence adduced does not establish that Respondent Union caused or
attempted to cause Respondent Company to refuse to hire Morton H. Baker.
[Recommendations omitted from publication.]
S At the conclusion of the hearing in this matter, the Trial Examiner posed the question
noted above 'and asked counsel for the General Counsel to specify the remedy he deemed
appropriate . Nevertheless , he has not come forward with any suggestions concerning
appropriate remedial action.
6 Schenley Distillers , Inc., a Delaware corporation engaged in the production of beverage
distilled spirits maintains plants throughout the United States . The plant involved
herein is located in Lawrenceburg, Ind. During the period of time material herein goods
and materials valued In excess of $1,000 ,000 were shipped to the Lawrenceburg plant
from States other than Indiana and goods and materials valued in excess of $5,000,000
were shipped from said plant to points and places in States other than Indiana.
Whittaker Controls Division of Telecomputing Corporation
(Lynwood Plant) I and International Union , United Automo-
bile, Aircraft and Agricultural Implement Workers of Amer-
ica, UAW-AFL-CIO, Petitioner.. Case No. 21-RC-5B44. De-
cember 19, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Ben Grodsky, hear-
ing officer. The hearing officer's rulings made at the hearing are
free, from prejudicial error and are hereby affirmed.
1 The name of the Employer appears as corrected at the hearing.
122 NLRB No. 81.