Local 626, United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1238 (N.L.R.B. 1963)

1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof is to force or require the Company to assign to longshoremen represented
by Local 1291, International Longshoremen 's Association , AFL-CIO, rather than
to employees (yardmen ) represented by Local 14, International Union of Marine
and Shipbuilding Workers of America , AFL-CIO, the work of moving privately
owned vehicles (POV's) for exclusive loading or unloading under the Company's
stevedoring contract with the U .S. Army, from the parking areas to the place on
the dock designated as "under the hook," or from the latter place to the former
places within the Company's terminal , except insofar as any such action is
permitted under Section 8(b) (4) (D ) of the Act.
LOCAL 1291 , INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania,
19107, Telephone No. Pennypacker 5-2612, if they have any question concerning
this notice or compliance with its provisions.
Local 626, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Paul K. Shotzberger , Jr. and Food
Fair Stores, Inc. Case No. 4-CB-802. June 18, 1963
DECISION AND ORDER
On October 10, 1962, Trial Examiner Thomas F. Maher 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 attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. The Respondent filed a memorandum in sup-
port of the Intermediate Report.
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 [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report and the entire record
in this case, including the exceptions, the brief, and the memorandum,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions :
We agree with the Trial Examiner that the evidence in this case is
insufficient to support the allegation of the complaint that Respondent
Local 626 caused the Employer to refuse employment to employees
Shotzberger and Faul, in violation of Section 8 (b) (2) of the Act.
142 NLRB No. 125.
LOCAL 626, UNITED BROTHERHOOD CARPENTERS, ETC. 1239
The facts, more fully set forth in the Intermediate Report, are as
follows : The alleged discriminatees in this case, Paul Shotzberger.and
Gregory Faul, members of Carpenters' Locals 287 and 59, respectively,
were employed by Food Fair at several locations in Pennsylvania.
Before moving to Wilmington, they were told by Food Fair that they
would have to get work permits from whatever union had jurisdiction
there. On March 7, 1962, they reported for work at the Employer's
construction site in Wilmington, Delaware. Union carpenters in this
area are members of Local 626 and, according to the constitution of
the parent organization, all members of sister locals desiring to work
in a particular jurisdiction are required to secure work permits or
clearance from the local union. Shotzberger and Faul were unsuccess-
ful in their attempts to secure either a work permit or clearance from
Local 626. It is conceded that the Employer, having adopted a policy
of hiring only union members, and further, unwilling to employ Shotz-
berger and Faul without the approval of Local 626, denied these em-
ployees employment on March 8, 1962. The record further reveals that
the Employer's field superintendent, Linwood T. Ford, Jr., was a mem-
ber of Carpenters' Local 845 and Foreman Fiumara was a member of
Respondent Local 626. Superintendent Ford asked for and received a
copy of the Respondent's bylaws and working rules, which he appar-
ently intended to follow during the construction period at the Wil-
mington site. However, the Employer at no time was under a con-
tractual obligation to this Respondent or any other labor organization
in the Wilmington area.
The General Counsel contends, nevertheless, that the Employer and
Respondent Local 626 were parties to an illegal hiring arrangement
and that Shotzberger and Faul's loss of employment was pursuant to
this arrangement. In support of its position that the Employer's em-
ployment policy was bilateral rather than unilateral, the General
Counsel points to the following facts : An assistant business agent of
Respondent arrived on the jobsite, checked the card of Superintendent
Ford, and took the names of the men seeking permits; Respondent's
business agent arrived the following day, notified the Employer of the
rate to be paid the foreman, saw to it that a steward was appointed,
and refused to give the two men working permits. Respondent also
actively participated in the welfare fund provided for the carpenters
by the Employer. The General Counsel also relies upon the argument
that Foreman Fiumara, a member of the Respondent, was an agent of
the Respondent in suggesting that Respondent might call a strike if
Shotzberger and Faul were permitted to work without a permit.
The evidence set forth above is insufficient, in our opinion, to war-
rant the conclusion that the Employer was at any time bound by an
understanding with the Respondent to use only union labor at the
Wilmington construction site. So far as the record shows, the Em-
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer could have, if it desired, employed nonunion carpenters with-
out reference to Respondent's bylaws or working rules . The fact that
it unilaterally chose to employ union members does not establish a
mutual agreement or understanding to such effect between Respondent
and the Employer. "Neither employer nor union can be held account-
able for the unilateral actions of the other. Neither is bound to police
the other nor can it be inferred, that an unfair labor practice indulged
in by one is caused by the undisclosed activity of the other or through
the tacit understanding of both. Evidence of such activity or under-
standing is necessary." N.L.R.B. v. Brotherhood of Painters, Deco-
rators & Paperhangers of America, etc. (Spoon Tile Co.), 242 F. 2d
477 (C.A.10).-
With respect to the authority of Foreman Fiumara to act for the
Respondent because he was a member of the Respondent and subject
to its bylaws, the General Counsel and our dissenting colleague rely
upon the decision of the Court of Appeals for the District of Columbia
in Carpenters District Council of Detroit et al., v. N.L.R.B. (W. J. C.
Kaufman Co.), 285 F. 2d 289 (C.A.D.C.), in which a divided court
held that a foreman who exercised hiring authority in accordance with
the commands of a union constitution rather than his employer's in-
structions was acting as an agent of the Respondent Union of which he
was a member. However, the court distinguished that case from the
decision of the same Circuit Court of Appeals in Carpenters District
Council of Milwaukee County, etc. v. N.L.R.B. (Del-Mar Cabinet
Company), 274 F. 2d 564. The court pointed out that in the Kaufman
case there was no suggestion "that the employer had a policy of hiring
only union members or that he required work permits." It is clear, of
course, that in the instant case Foreman Fiumara was instructed to
hire union members when he himself was employed and the Employer
required work permits. The legality of employing an active union
member as a hiring foreman was more recently considered by the
Supreme Court in N.L.R.B. v. News Syndicate Company, et al., 365
U.S. 695, affg. 279 F. 2d 323 (April 17, 1961). There the Court held
that where the parties had agreed by contract that mailroom superin-
tendents, foremen, and assistant foremen must be members of the
union and that all hiring would be done by the foremen, who were re-
quired to be "active members" subject to the Union's general laws
i Also see Local Union No 59$, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO ( Brunswick Corporation ), 135 NLRB 999 , where the Board found : "The evidence
establishes that although the Company looked to the Respondent as a ready source of
workmen, it retained at all times its freedom to hire from any source and was not con-
tractually bound to require its employees or applicants for employment to be members in
Respondents ' organization or to seek referrals therefrom we do not regard the single
instance of the discharge of an employee for lack of a work permit from the Respondents
as sufficient evidence establishing the existence of an illegal hiring agreement , arrangement,
or practice."
LOCAL 626, UNITED BROTHERHOOD CARPENTERS, ETC. 1241
which contained a closed,-shop clause, neither the existence of the con-
tract itself nor the exercise of hiring authority under it was, without
more, unlawful. A fortiori, in the instant case, where no contract re-
quired the Employer to hire a union member as a foreman, but where a
member was so employed and specifically instructed to effectuate the
-Employer's unilaterally adopted policy of hiring only union members,
it is not a tenable theory under the above cases that such a foreman is
an agent of the Respondent authorized to threaten a strike on behalf
of the Respondent .2
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
In my opinion the evidence set forth in the record and analyzed in
the General Counsel's brief clearly establishes the existence of an
arrangement between Food Fair and the Respondent Union which
conditions employment upon union approval based on union member-
ship. Such an arrangement is illegal. It was pursuant to this arrange-
ment that Shotzberger and Faul were denied clearance by Respondent
Union because of their nonmembership in the Respondent Union.
Hence it follows that their employment was discriminatorily denied or
terminated in violation of Section 8(b) (1) (A) and 8(b) (2) of the
Act.
The existence of the above-mentioned illegal arrangement is made
clear by the following facts : 3
As to Food Fair:
Food Fair's field superintendent, Mr. Ford, himself a member of the
Carpenters' Union since 1950, adhered to a practice of hiring only
union men. Before Ford left the Employer's project in Middletown,
Pennsylvania, he told Shotzberger and Faul, who were members of
sister locals of Respondent that "if they came down from the Wilming-
ton area and got a working permit [he] would keep them on." 4
About a week before he started the Wilmington job, Ford asked for
and received from the Respondent a copy of its bylaws and working
rules. Thereafter, on March 7, 1962, Ford hired James Fiumara at
3 Nor does the Brunswick case, supra, footnote 1, support the dissent's view that "Even
if an illegal arrangement is not found to exist, a union's discriminatory action in circum-
stances such as these violates Section 8(b)(1) (A) and 8 ( b)(2)." In Brunswick, the
respondent demanded the discharge and was therefore found to have caused it whereas in
the instant matter, as appears in the Intermediate Report, the Respondent , when telling
Food Fair that it could not sell the complainant a work permit , told Food Fair that it
could hire whom it pleased.
See Local 715, United Brotherhood of Carpenters and Millwrights, AFL-CIO ( Charles
S. Wood and Co.), 121 NLRB 543. See also Glazier8, Glassworkers, etc., Local Union No.
1778, etc. (Dixie Glass Co., Inc.), 134 NLRB 702
4 Thus, it was at Superintendent Ford 's suggestion that Shotzberger and Paul arrived at
the jobsite on March 7, 1962, and undertook to obtain work permits from the Respondent.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the jobsite as foreman of the carpenters, after first making sure that
Fiumara was a member of the Respondent. Ford them instructed
Fiumara to hire only union men and to telephone the Respondent
"that the job was going to start and ask the business agent to come
out on the job and talk over local conditions."
Thereafter, Fiumara made the telephone call as requested and pro-
ceeded to hire only members of the Respondent. Food Fair paid the
prevailing wage in the area for Respondent's members and hired men
in accordance with Respondent's bylaws. Food Fair also accepted the
appointment of a steward by the Respondent, and paid the fringe
benefits and welfare benefits negotiated by Respondent for the area.
Food Fair, through Ford, also terminated Shotzberger and Faul when
it became clear that they could not secure work permits from the
Respondent.
As to the Respondent:
Respondent supplied Food Fair's Superintendent Ford with its by-
laws and working rules which, when read with general laws of the
International Union,5 required that members of sister locals who trans-
fer to a job within Respondent's territorial jurisdiction obtain work
permits or clearances.
On or about March 7,1962, Foreman Fiumara, Respondent's Agent,'
told Ford that if he (Ford) used Shotzberger and Faul on the Wil-
mington job without permits, Respondent' s rules would be violated
and Respondent "could pull the job." Fiumara also advised Shotz-
berger and Faul that if they didn't have a permit, Respondent "might
5 The Respondent ' s bylaws and working rules implement its International Union's con-
stitution and general laws. It is clear that Superintendent Ford was aware of the pro-
visions of the constitution and general laws as well as the Respondent 's bylaws and
working rules
e There is no doubt that Foreman Fiumara was Respondent ' s agent herein as Respond-
ent's bylaws , General Counsel's Exhibit No . 2, with which Superintendent Ford complied,
make him an agent. Thus, section 31 of those laws requires that a foreman be a member
of the Respondent and that he possess a current work permit from Respondent . Sections
15 and 19 provide for the possession of work permits on the first day of work Section 26
requires that the foreman give all orders to Respondent's members. It is significant to
note that all carpenters who worked for Food Fair at Wilmington were members of Re-
spondent . In addition , section 30 provides for the foreman 's rate of pay and the union
standards for foremen , and section 26 states that it is the duty of members to report
violations of the bylaws In such circumstances , it Is clear that Foreman Fiumara was
required by Respondent to enforce, and did enforce, its rule that all persons working as
carpenters within its jurisdiction have wo,k permits Accordingly, Respondent is respon-
sible for Fiumara 's statements concerning what would happen if Food Fair allowed Shotz-
berger and Faul to work at its Wilmington job without their securing work permits See
Carpenters District Council of Detroit, et at (W J. C. Kaufman Co ), 125 NLRB 546, 547,
enid. 285 F . 2d 289 (C A D C ). Moreover, Fiumara's above-cited statements effectively
caused Superintendent Ford not to permit Shotzberger and Faul to work without permits
Ford himself testified "I wanted to hire Greg and Paul but I was afraid to . . . I thought
they [the Union] would strike if I hired them without permits."
N L.R.B. v. News Syndicate Co., et at ., supra, relied on by my colleagues, Is clearly
distinguishable . In that case , there was no understanding between the company and the
union , as there Is in this case , requiring employees to become union members ; the con-
tract in that case specifically provided that the union would not discipline the foreman for
carrying out the Instructions of the employer
LOCAL 626, UNITED BROTHERHOOD CARPENTERS, ETC. 1243
come down here and strike and shut the job down." He also advised
them "I wouldn't go to work if you don't get a permit."'
Respondent's assistant business agent came to the job, checked the
superintendent for a union card, took the names of the two men seeking
permits, and the next day Respondent's business agent went to the job-
site, notified the Employer of the rate to be paid foremen, appointed a
steward, and refused to issue work permits to Shotzberger and Faul
even though requested to do so by Ford.
Moreover, the evidence clearly shows that Respondent did not clear
Shotzberger and Faul for employment because of their nonmembership
in Respondent's local.' Thus, Business Agent Hartnett testified that
he told Ford he would not sell Shotzberger and Faul work permits be-
cause "we had 650 men out of work"; and in answer to Ford's question
as to whether they could clear, Hartnett said "That's up to the member-
ship." Moreover, Hartnett, who had the power to issue work permits
to Shotzberger and Faul without apparently violating Respondent's
bylaws, persisted in his refusal to do so. Thus, when Ford cited sec-
tion 32 of the Respondent's bylaws as authorizing him (Ford) to ob-
tain work permits for Shotzberger and Faul, Hartnett said that
"He did not go by that particular section."
Shortly thereafter, Ford terminated the employment of Shotzberger
and Faul, at the same time advising them to file a charge with this
agency because of the Respondent's refusal to clear them for work.'
Accordingly, for the foregoing reasons, I would find that Respond-
ent violated Section 8(b) (1) (A) and 8(b) (2) of the Act.
' There was nothing voluntary about their termination . ( See Plumbers & Pipe Fitters
Local Union 214 (D. L Bradley Plumbing and Heating Co ), 131 NLRB 942 ) The evi-
dence shows : First, that Superintendent Ford told Shotzberger and Faul that he would
continue to employ them if they went to Wilmington and secured work permits from the
local union having jurisdiction , i.e , Respondent , second , they engaged in extensive efforts
to secure work permits and clearances , and third , Shotzberger 's own testimony, as set
forth by the Trial Examiner , is that when he and Paul learned that they could not get a
permit "Gregory Paul and myself then decided we weren't going to go to work without
a permit" because he feared "what might develop if I went to work without a permit and
also because of the union by-laws " In this connection , it is significant to note that the
Respondent 's bylaws and its International ' s general lap s provide at the least a reprimand
or a fine for working without a permit That Shotzberger 's and Faul's fears in this respect
were not groundless is shown by the fact that Respondent subsequently , on March 28, 11962,
charged them with violating the general laws by working without work permits on March
7, 1962, the date they reported to Food Fair ' s Wilmington job. In sum, in view of
Respondent 's repeated denial of work permits, and considering the explicit threat of re-
taliatory action in Respondent ' s bylaws and its International 's general laws, it is clear to
me that Shotzberger and Paul did not voluntarily abandon their employment Indeed,
they were terminated and paid off by Ford
s Even if an illegal arrangement is not found to exist, a union's discriminatory action
in circumstances such as these violates Section 8(b) (1) (A) and 8 ( b) (2). See Local 592,
United Brotherhood of Carpenters and Joiner of America , AFL-CIO, ( Brunswick Corpora-
tion ), 135 NLRB 999 , 1000-1002. Moreover , in view of the relationship between Respond-
ent and Food Fair's job superintendent , Ford, who himself was a member of the Carpen-
ters ' Union and subject to its rules, my colleagues' attempt to distinguish the Brunswick
case lacks persuasiveness
6 As previously noted, Ford testified that while he wanted to employ both Shotzberger
and Paul, lie was afraid to do so because he feared the Respondent would strike the project.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on March 22, 1962, by Paul K . Shotzberger , Jr., an employee
of Food Fair Stores, Inc.,' the Regional Director for the Fourth Region of the Na-
tional Labor Relations Board, herein called the Board, issued a complaint and an
amendment thereto on behalf of the General Counsel of the Board on June 14 and
July 11, 1962, respectively , against Local 626, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Respondent herein, alleging violations of Section
8(b)(1) (A ) and (2 ) of the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151 , et seq. ), herein called the Act . In its duly filed answers to the complaint
and to the amendment thereto Respondent , while admitting certain of the allegations
contained therein , denied the commission of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in Wilmington , Delaware, on July 23, 1962. All parties were represented and were
afforded full opportunity to be heard , to introduce relevant evidence , to present oral
argument, and to file briefs with me. Briefs were filed on August 17 and 27, 1962,
by Respondent and General Counsel , respectively
Upon consideration of the entire record in this case , including the briefs of the
parties, and upon my observation of each of the witnesses testifying before me,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Food Fair Stores, Inc., the Employer of the Charging Party herein, is a Pennsyl-
vania corporation with its principal offices in Philadelphia, Pennsylvania, and with
retail supermarkets located in numerous States of the United States, including the
State of Delaware. Food Fair annually does a gross volume of business in excess
of $1,000,000 and receives annually goods and materials valued in excess of $50,000'
from outside the Commonwealth of Pennsylvania. Upon the foregoing admitted facts
I find that Food Fair Stores, Inc., is an employer within the meaning of the Act.
II. THE STATUS OF THE RESPONDENT
Local 626, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
is conceded to be a labor organization within the meaning of the Act and I so find.
M. THE ISSUE
The sufficiency of evidence to establish that the termination of employment of
two employees was caused by the Respondent Union and not by either the action of
the Employer or the voluntary action of the employees themselves.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Sequence of events
Paul Shotzberger and Gregory Faul, both employed by Food Fair as carpenters
at several of its operations in Pennsylvania and members of locals of the Carpenter's
Union in that area, reported for work on March 7, 1962, at a store under construc-
tion in Wilmington, Delaware, upon orders of Food Fair's field superintendent, Lin-
wood T. Ford, Jr., himself a member of Local 845 of the Carpenters' Union.
Immediately upon their arrival Shotzberger and Faul announced to Ford that
they planned to visit the union office and "get a permit to go to work." Ford sug-
gested that they might as well wait as the business agent was already on his way to
the job. Upon his arrival at the jobsite, Walls, the assistant business agent of Re-
spondent, after conversing with Field Superintendent Ford, checked the union cards
of Shotzberger and Faul. Upon their request for work permits he informed them
that they would have to await a decision of the business agent, Hartnett. Walls then
1 The caption of this matter has been corrected to conform to the record J. M. Lansing,
et at., d/b/a Consumers Gasoline Stations, 126 NLRB 1041. Food Fair Stores, Inc., the
Employer herein, was designated as "Party to the Contract." As there is no evidence
whatever of any pertinent contract involving this Employer reference to it is accordingly
deleted.
LOCAL 626, UNITED BROTHERHOOD CARPENTERS, ETC. 1245
left the job. Whereupon Superintendent Ford instructed Shotzberger and Faul not
to do any carpentry work and they returned to the job of unloading a truck at which
they had been occupied while awaiting Walls' arrival.
When the two men returned to the job on the following morning Superintendent
Ford met them at the entrance and told them to wait there. Whereupon Foreman
Fiumara, a member of the Respondent Local, who was accompanying Ford, said
to them, "I wouldn't go to work if you don't have a permit." Ford then said to them,
"You better wait until Mr. Hartnett (the business agent) comes on the job." Several
hours later, Ford came to the two waiting men and told them that he had a visit from
Hartnett and that he had stated that he would not issue the men work permits but
that he would take the matter up with the Respondent's executive board when next it
met. After Business Agent Hartnett had left the job on this morning of the 8th and
Superintendent Ford had informed the men of the situation with respect to their
applications for work permits he then paid them off, telling them that they were
finished and that he could not keep men on the job who were not working. Shotz-
berger and Faul then returned to their homes to await a final decision from the
Respondent on the subject of receiving their work permits or clearance.
The union board met on March 12 but no action was taken. Thereafter, on
March 21 the two men attended a meeting of the Union itself, seeking to receive a
clearance at that time. The clearance was refused them then because charges had
been filed against them in the meantime, the offense being that they had worked in
the jurisdiction without securing a work permit, i.e., they had helped to unload a
truck on the first afternoon at the jobsite. In this respect it is to be noted, however,
that no one connected with the Respondent ever objected to the unloading work or
forbid the men to do it. Its significance, therefore, is limited only to the internal
union complaint which it set in motion.
On the following day the men returned to the job and spoke to Superintendent
Ford who suggested they file charges with the Board .2
2. Superintendent Ford's interest in the matter
Immediately upon his arrival on the job on March 7, Field Superintendent Ford
communicated with the Respondent although it is conceded that at no time relevant
to the incidents herein did Food Fair have a contract with this Respondent or any
other labor organization in relation to the Wilmington job. Ford asked for and
received a copy of the Respondent's bylaws and working rules and thereafter hired
Foreman Fiumara, a member in good standing in the Respondent, as his foreman,
instructing him to hire only union men .3
Significantly, it was Ford who, by his own admission , (1) initiated the movement
whereby Shotzberger and Faul were to obtain permits before -working; 4 (2) sent
for Assistant Business Agent Walls; (3) instructed the two men not to do any car-
pentry work; and (4) spoke to Business Agent Hartnett about securing work permits
for the men. And in this latter conversation it is equally significant that when Ford
said to Hartnett, "Are you telling me I can 't put Shotzberger and Faul to work?"
Hartnett replied, "I am doing no such thing. All I'm telling you is I can't sell them
a permit." 5 And finally it was Ford who, by his own admission, made the decision
not to let the men go to work without permits.
3. The business agent's position
Business Agent Hartnett credibly testified to the unemployment situation in the
area, the reluctance fo the Union to give work to "outside" carpenters, and his refusal
to give work permits to Shotzberger and Faul. He denied, however, that he ever
directed that either of these men were not to be hired. In fact, substantiating Foreman
Fiumara, the source of the incident set forth above, he credibly testified that when
Superintendent Ford asked him if he were denying the men work he told Ford,
"You can call anyone you want to; I can't stop you."
2 The foregoing facts are a composite of the credited testimony of Superintendent Ford,
Foreman Fiumara, and employees Shotzberger and Paul. The testimony of these indi-
viduals appears, in the main, to be consistent and is not otherwise denied or controverted.
The credited testimony of Foreman Fiumara.
' Shotzberger testified, however, that he stated upon arrival at the job that first he
would go to the union hall for a permit. I do not consider this discrepancy to be anything
more than a hazy recollection.
i The credited undenied testimony of Foreman Fiumara.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Shotzberger 's and Faul's reactions
Quite apart from the reasons for their discharge given by Ford , which , incidentally,
I believe , Shotzberger and Faul credibly testifying to the incidents set forth above,
expressed their own personal reasons , first for seeking to obtain a work permit, and
thereafter for being unwilling to work without one. Thus Shotzberger testified that as
soon as they arrived on the job they told Superintendent Ford that they were going
to the union office for a work permit before going to work . Then , when they
learned that they could not get a permit "Gregory Faul and myself then decided we
weren 't going to go to work without a permit ." Because , as he later testified, he
feared "what might develop (referring to the possibility of union carpenters not
working on the job with them ) if I went to work without a permit and also because
of the union By-Laws."
Similarly, Faul testified that he knew that as a union member he was required to
have a permit before going to work and that he voluntarily left because he could
not get such a permit.
Faul's testimony suggests , to be sure , an inherent conflict , for throughout it there
is the constant reference to Superintendent Ford 's insistence that he have a permit
before going to work . In my opinion Faul could well believe both alternatives,
knowing as he did that Ford was as interested in the matter as he was. Thus Ford's
strong feelings in favor of accommodating the Respondent became , in Faul 's mind,
the same as his own feelings of loyalty and compulsion as a union member.
B. Conclusions
Upon the foregoing facts it is plain that Shotzberger and Faul were refused employ-
ment at the Wilmington job for either or all of three reasons : ( 1) Food Fair's
refusal , through its union -oriented field superintendent , Ford , to permit them to work
on the job ; (2) their respective loyalties to the union code of operations requiring
that out-of-town union members in good standing be cleared onto a job by either
clearance or the issuance of a work permit ; and (3 ) their fears of what would happen
either to them or to the job should they go to work without either clearance or a
work permit.
If the reason for their nonemployment be Food Fair 's reluctance , through Field
Superintendent Ford , to continue their employment it would appear that the wrong
party has been named Respondent in this proceeding . If, on the other hand, the
reason be either of the two remaining alternatives it would then appear that Shotz-
berger and Faul were exercising either their prerogatives or their apprehensions, as
the case may be, of the staunch union members they claimed to be. In no event,
however , is there anything in the record of this case to suggest that the Respondent
Union in any way caused or attempted to cause Food Fair , through its field super-
intendent , Ford , or otherwise , to dismiss Shotzberger or Faul. Nor, in the alter-
native , is there anything to suggest that Respondent coerced or restrained either of
these two into withdrawing from their jobs. In the absence of such evidence and
the positive evidence of voluntary action on the part of each employee affected I
would recommend that the complaint be dismissed in its entirety.
Gale Products, Div. of Outboard Marine Corp .' and Marine Motor
Lodge No . 1659 2 and Bernard Smith . Cases Nos. 13-CA-4875
and 13-CA-4912. June 19, 1963
DECISION AND ORDER
On October 30, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
1 Hereinafter referred to as Gale or the Respondent.
2 Hereinafter referred to as the Independent.
142 NLRB No. 136.