Local 911, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Dec 18, 1958

122 N.L.R.B. 499 (N.L.R.B. 1958)

LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 499
($3.00) of each initiation fee for each member shall be retained by the International
Secretary-Treasurer and the balance returned or sent to the Local Union.
SEC. 5. When any Local Union fails to report and remit to the International
Secretary-Treasurer the full amount of initiation fees and dues and assessments as
provided for herein, said International Secretary-Treasurer shall notify the Local
Union President and the Recording Secretary of the Local Union of the fact, and
failing to receive a satisfactory response within ten days thereafter, the Local Union
shall stand suspended. The International Secretary-Treasurer may publish and dis-
tribute a delinquent list of all such Local Unions so suspended.
Manual-Order of Business for Conducting Local Union Meetings
5. Report of Officers.
FINANCIAL SECRETARY: The Financial Secretary should make a report to
each meeting indicating the dues collected and the amount of money submitted to
the Local Union Treasurer. (Sic.) As chairman of the dues committeemen, who
are his assistants , he should report their activities and progress . It is the duty of
the Financial Secretary to keep a record and accurate check of the dues collected
by the dues committeemen.
Local 911, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Wand Corporation] i
and James Keener and Gideon Parker. Case No. 36-CB-150.
December 18, 1958
DECISION AND ORDER
On November 27, 1957, Trial Examiner Martin S. Bennett issued
his Intermediate Report in this case, finding that the Respondent
Union had engaged and was engaging in certain unfair labor prac-
tices within the meaning of Section 8(b) (1) (A) and (2) of the
Act and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the Union and the General
Counsel filed exceptions to the Intermediate Report, together with
briefs?
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent indicated below.
As the record shows and the Trial Examiner found, Wand, by
terminating its subcontract with Putnam, ousted the complainants
from the work they were doing at - the Johns-Manville building
project. If Wand were before the Board, the conduct, motivated
as it was by discriminatory reasons, would have been found to con-
stitute an unfair labor practice within the meaning of Section 8(a)
(1) and (3) of the Act. Northern California Chapter, The A8so-
1 The Board having been advised by the AFL-CIO that it deems the Teamsters' cer-
tificate of affiliation revoked by convention action, the affiliation is accordingly amended.
2 The Union also requested oral argument. As the record, exceptions, and briefs ade-
quately present the issues and positions of the parties, the request is hereby denied.
122 NLRB No. 39.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciated General Contractors of America, Inc. et al., 119 NLRB 1026.8
Nor can we agree with our dissenting colleague that the authority
of the Northern California case is in any way impaired by the
Supreme Court's decision in the Sand Door case4 That case in-
volved an entirely different provision of the Act, prohibiting a union
from inducing employees to strike because of a labor dispute with
some employer other than their own. The Court's statement that
a union is free to approach the employees' employer in order to
obtain support for its labor dispute with the other employer must
be viewed in this context, as the Court made clear when it expressly
pointed out that Section 8(b) (4) (A) is limited to inducement of
employees. Here, as in the Northern California case, however, the
basic question arises from the prohibition of Section 8(a) (3) against
discrimination by an employer, not limited to his own employees,
to encourage or discourage union membership. The facts show
that Wand by its termination of the Putnam subcontract had as
its objective, not the cessation of business for valid economic con-
siderations, as suggested by our dissenting colleague, but the dis-
crimination against Putnam's employees because of their nonmem-
bership in the Union, and we cannot read Sand Door as approving
this discrimination.
The facts here clearly show that the Union caused the discrimina-
tion engaged in by Wand. Moreover, for the reasons set forth in
the Northern California case, the Union's conduct also supports the
separate allegation of the amended complaint that the Union at-
tempted to cause Putnam to discriminate against employees in
violation of Section 8(a) (3). Accordingly, we find merit in the
General Counsel's exception to the Trial Examiner's finding that it
was unnecessary to pass on this allegation. Although the dissent
would dismiss the complaint in its entirety, we can find no discussion
whatsoever of this phase of the case, and no reasoning as to why
the Board should permit the Union's indirect pressure on Putnam
to discriminate against employees.
In our opinion the means by which the Union caused Wand to
discriminate and attemped to cause Putnam to do likewise, and the
Union's lack of success as far as Putnam was concerned, can furnish
no defense to the Union's unlawful conduct. Unlike Section 8(b)
(4) (A), Section 8(b) (2) outlaws the discriminatory objective sought
by the Union, and not merely certain methods of seeking that
objective. And in this respect the record is clear that the Union's
objective was not simply to encourage union membership but to
seek the ouster of nonunion employees.
3 Chairman Leedom considers himself bound by the decision of the Board majority in
the cited case.
4 Local 1976 , 'United Brotherhood of Carpenters and Joiners of America , etc. v. N.L.R.B.
( Sand Door & Plywood Company ), 357 U.S. 93.
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 501
For the foregoing reasons, we agree with the Trial Examiner's
conclusion that the Union violated Section 8(b) (2) and (1) (A)
of the Act. The Union argues that its conduct was lawful because
pursuant to a subcontractor clause like the one in the Northern
California case. However, the Board there found that such a clause
was lawful only insofar as it was to be implemented prospectively,
on the ground that any possible discriminatory effect was too remote
and speculative. Significantly, the Board further found that such
a clause did not constitute a defense to the discriminatory removal
of employees from a project where, as here, they were actually
working.
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the Act, the National Labor Relations Board hereby orders that
the Respondent, Local 911, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and its officers,
representatives, agents, successors and assigns shall:
1. Cease and desist from :
(a) Causing or attempting to cause Wand Corporation, or Putnam,
or any other employer as to whom the Board would assert juris-
diction, to discriminate against employees in violation of Section 8
(a) (3) of the Act.
(b) Restraining or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole James Keener and Gideon Parker for any loss
of pay they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Post at its business offices copies of the notice attached to
the Intermediate Report marked "Appendix A."5 Copies of the
notice, to be furnished by the Regional Director for the Nineteenth
Region, shall be duly signed and posted immediately upon receipt
thereof and maintained for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken to insure
5 The notice shall be first amended by substituting for the words "The Recommendations
of a Trial Examiner" the words "Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be further sub-
stituted 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."
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such notices are not altered, refaced, or covered by any other
material.
(c) Mail to the Regional Director for the Nineteenth Region
signed copies of the said notice for posting at the construction sites
of Wand and Putnam within the jurisdiction of the Respondent,
the employers willing, for sixty (60) consecutive days in places
where notices to employees are customarily posted.
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what
steps have been taken to comply herewith.
MEMBER FANNING, dissenting :
I cannot agree with the majority's conclusion that Wand, a gen-
eral contractor, would be in violation of Section 8(a) (3) of this Act
solely on the ground that it had terminated its contract with Putnam,
an entirely independent employer. Section 8(a) (3) forbids dis-
crimination by employers against employees. I do not believe it
can be extended to restrict the external business affairs of employers
in their relations with other employers. Clearly and obviously the
cessation of business between two employers, one of whom is a
neutral and the other an employer involved in a labor dispute,
as in the instant case, comes under the general heading of secondary
boycott. Section 8(b) (4) (A) forbids a union to strike or to induce
employees to strike to attain such an objective. In this case the
Respondent persuaded Wand to boycott Putnam by means not for-
bidden under this statute. The decision of Wand to accede to the
Respondent's request, in my opinion, was entirely within Wand's
freedom of choice in this area of the law. Valid business considera-
tions might have persuaded this employer to subcontract only to
union subcontractors. Another employer, with equal validity, might
prefer to do business only with nonunion subcontractors. To hold
that an employer must continue to do business with a nonunion sub-
contractor on pain of violating Section 8(a) (3) goes far beyond
anything contemplated by this statute. It goes without saying that
the Respondent's request that Wand engage in such a boycott was
not a violation of Section 8(b) (2) or 8(b) (1) (A).
I have read the several opinions in Northern California Chapter,
The Associated General Contractors of America, Ine., et al., 119
NLRB 1026, upon which the majority relies. A more recent decision,
however, is that of the U. S. Supreme Court in Local 1976, United
Brotherhood of Carpenters and Joiners of America, etc. v. N.L.R.B.
(Sand Door d Plywood Co.), 357 U.S. 93. In that case the Court
pointed out that Congress did not forbid all forms of secondary
boycotts in legislating the Taft-Hartley Act. The Court said:
. . . Thus, much that might argumentatively be found to fall
within the broad and somewhat vague concept of secondary
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 503
boycott is not in terms prohibited. A boycott voluntarily en-
gaged in by a secondary employer for his own business reasons,
perhaps because the unionization of other employers will protect
his competitive position or because he identifies his own interests
with those of his employees and their union, is not covered
by the statute. Likewise, a union is free to approach an em-
ployer to persuade him to engage in a boycott, so long as it
refrains from the specifically prohibited means of coercion
through inducement of employees. [Ibid, at pages 98-99.]
In my opinion, the above language of the Supreme Court of the
United States is dispositive of the issue in this case. Under the
Court's decision the Respondent was free to approach Wand, a
neutral employer, and to persuade it to boycott Putnam, a nonunion
subcontractor. Whether or not this is a desirable policy in the field
of labor-management relations is a matter for Congress, but not this
Board to decide. As one entrusted only with the function of ef-
fectuating the intent of Congress, I am bound to accept the Supreme
Court's interpretation that one employer's refusal to do business
with another "is not covered by the statute."
The majority takes the position that the Supreme Court in the
Sand Door case did not intend to say, as it did in the clearest and
most specific language, that "a union is free to approach an employer
to persuade him to engage in a boycott." Rather, the majority be-
lieves that the Supreme Court did not consider the possibility that
the General Counsel could have alleged a violation of Section 8(b)
(2) rather than Section 8(b) (4) (A). If the majority is right, then
the language of the Court was, indeed, ill-considered. For the
situation presented in the Sand Door case is identical to the one
with which we are here concerned. I cannot take the position that
the Supreme Court, faced with an alleged violation of Section 8
(b) (4) (A), would disregard other provisions of the statute in stat-
ing that an employer could lawfully be induced by a union to boycott
another employer. As the Court pointed out, the various provisions
of the Taft-Hartley Act were hotly debated. Those who were in-
terested in a broad policy to condemn all secondary boycotts as
such "were unable to secure its embodiment in enacted law." I must
accept the Court's caveat that we should be wary least by construc-
tion the statute is interpreted to mean what Congress was careful
to avoid. I cannot stretch Section 8(b) (2) and 8(a) (3) to cover
a specific situation that the Court, carefully analyzing the statute
and the intent of Congress, has held lawful.
Accordingly, I would dismiss the complaint in its entirety.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10(b) of the National Labor Relations
Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against Local 911, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. The
complaint dated May 14, 1957, as later amended, alleged that Respondent had en-
gaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act. Copies of the complaint, the charge upon which it was based, and notice
of hearing thereon were duly served upon Respondent.
The complaint alleged that: (1) Wand Corporation was a subcontractor engaged
in construction at a plant near Chiloquin, Oregon; (2) Ned Putnam, an individual
proprietor, was hired by Wand to perform a portion of this work; (3) and on or
about March 6, 1957, Respondent caused Wand to remove two Putnam employees,
James Keener and Gideon Parker from the job because they were not members of
Respondent. Respondent's answer denied the commission of any unfair labor prac-
tices and further alleged that if Keener and Parker had been removed from the
project it was solely the act of Wand and not of Respondent.
Pursuant to notice, a hearing was held at Klamath Falls, Oregon, before the duly
designated Trial Examiner, on October 15 and 16, 1957. The parties were repre-
sented by counsel who were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evidence. Respondent was given
permission to file an exhibit after the conclusion of the hearing; the document has
been duly submitted, objection to its receipt made by the General Counsel, and it
is hereby received in evidence as Respondent's Exhibit No. 2.1 At the close of
the hearing, the parties were given an opportunity to argue orally and to file briefs.
The General Counsel presented oral argument and a brief has been received from
Respondent and considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Wand Corporation is a California corporation having its principal office and
place of business at Pasadena, California, where it is engaged in the construction
business. In February 1957 Wand became a subcontractor for the Fuller Company,
a general contractor engaged in the construction of a plant for Johns-Manville Cor-
poration at Chiloquin, Oregon. For its services in 1957 under this contract Wand
will receive a sum in excess of $50,000.
Ned Putnam is an individual doing business as a logging contractor in the States
of Oregon and California with his principal office at Klamath Falls, Oregon. Dur-
ing the year 1956, Putnam performed logging services in the State of California
for which he received a sum of approximately $300,000. I find that Wand and
Putnam are each engaged in commerce within the meaning of the Act and that it
would effectuate the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 911, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, is a labor organization admitting to membership
the employees of Putnam.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; background
The incident under consideration herein took place on March 6, 1957, on a con-
struction site near Klamath Falls, Oregon. Two employees, James Keener and
Gideon Parker, allegedly lost their employment because Respondent caused a sub-
contractor on the job to remove the men from the job site.
1 Although the exhibit has been received, I agree with the General Counsel that the
exhibit, reflecting a statement by another representative of the General Counsel, in an-
other proceeding involving a labor contract hereinafter treated, does not support the
position of Respondent herein. Not only is the statement not a concession of the
legality of the contract but further, the issue was a different one from that under con-
sideration herein. See footnote 3.
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 505
The general contractor for this construction project was George A. Fuller Co.; I
will later treat with the claim of Respondent that Fuller was signatory to labor
agreements covering this project. A subcontractor on the job was the Wand Cor-
poration which had contracted with Fuller to install roofing, decking, and siding.
This subcontract had been signed on or about February 4 and Wand had started
actual operations on or about February 18, 1957. Wand encountered the problem
of transporting its raw materials from a railroad siding one-fourth of a mile across
open country to the plant site. On or about February 20 or 21, it contracted with
one Lowell Jones to transport the raw material from the siding to the job site. Jones
started the job but ran into difficulty because his equipment was not suited to opera-
tion in the mud.
It became apparent that a replacement for Jones would be required and Jones
recommended Ned Putnam because the latter had more suitable equipment. A
meeting was arranged between Putnam and Wand representatives on or about
March 1. On that date, Superintendent Calvin Phelps of Wand, who is also vice
president of that concern, orally contracted with Putnam that the latter would
perform this operation at the same price Jones had quoted. Thus, Putnam became
a sub-subcontractor on the job; nothing was said at this time about union working
conditions.
It was agreed that Putnam would start on Tuesday, March 5, and on Saturday,
March 2, Parker and Keener, having been assigned by Putnam to the project, moved
the Putnam equipment to the job site. Wand, it may be noted, directly employs
two crafts, carpenters and laborers, and has contracts with labor organizations for
these crafts. The motorized equipment on this particular project was equipment
which fell within the normal jurisdiction of the Teamsters organization.
In the interim, Phelps, who testified that Wand generally respects all applicable
union agreements on its construction projects, apparently a reference to complying
with prevailing local conditions, was informed that Putnam was a nonunion con-
tractor, as indeed was the case. Phelps contacted Putnam and arranged a meeting
with him for Sunday morning, March 3. At the meeting, Phelps verified that
Putnam was indeed a nonunion contractor and raised the issue of his nonunion help;
he expressed concern that this might result in protests by labor organizations over
the presence of these nonunion men and delay performance of the job.2 Phelps
posed the issue as one of having Putnam's men do the job and run the risk of
interruption or else having Wand lease Putnam's equipment and provide its own,
presumably union, operators. Putnam refused to accede to the latter alternative
and the men ultimately agreed that Putnam would start the job as scheduled on
March 5.
Keener and Parker reported to the job site on Tuesday, March 5, and worked
the day without any difficulty or interruption. Putnam was not on the project, hav-
ing left on a trip, but the two men were fully instructed as to the job to be under-
taken. There was no supervisory or other representative of Putnam present; in-
deed, there is no evidence that Putnam has any supervisors in his employ other
than himself. The work of the two men was entirely satisfactory to the Wand
representatives on March 5, as was the case the following day, March 6.
B. Intervention of Respondent on March 6
At approximately 1:30 p.m. on March 6, a representative of Respondent, Busi-
ness Agent Verne Berry, appeared on the job site. Berry, as he testified, had been
informed by his superior, Financial Secretary Gregory Judd of Respondent, that
Putnam equipment had been seen on the Fuller construction job. According to
Judd, he instructed Berry to call upon Wand and advise Wand that it was not liv-
ing up to the terms of the AGC agreement.3
Berry proceeded to the job site and observed the operation of the two pieces of
Putnam equipment, but did not on this or any other occasion speak to the two men,
presumably not union members; indeed there is no evidence of any attempts by
0 The record does not disclose whether any other nonunion contractors were on this
project.
3 This is a labor agreement covering the State of Oregon and part of the State of
Washington then in effect between Portland Chapter Heavy and Highway, the Associated
General Contractors of America, Inc., et al., and Joint Council 37 of the International
Brotherhood of Teamsters ; the latter signed the contract in behalf of its locals including
Respondent which also signed. Wand was not a member of any of the several associations
signatory to the contract, but is allegedly bound under a clause, article IV, making the
terms of the contract applicable to subcontractors. This is a matter of defense by
Respondent and is treated hereinafter.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to interest these men in union representation. He contacted Superin-
tendent Phelps who was accompanied by his general foreman, Harry Trumblee.
According to Phelps, Berry asked what the men were doing on the job "as they
were non-union." Berry added that these men "were not permitted to work on
the job."4
Berry, Phelps, and Trumblee entered the Wand shack on the job site. Accord-
ing to Phelps, he explained that Putnam men were performing unloading operations
for Wand. Phelps indicated his desire to "conform" with Respondent, apparently
a reference to local working conditions, and asked if the two men could join Re-
spondent and then be permitted to work. Berry replied that he doubted that this
could be done. According to Trumblee, and I so find, Berry stated that the Putnam
employees were not union members and could not work there. Both Phelps and
Berry testified that Phelps offered to pay the union dues for the men; according to
Phelps, and I so find, the offer was to pay initiation fees as well as dues. Berry
however expressed doubt that this could be done, but did not claim that it was un-
lawful or make any more suitable proposal.
At approximately this point, Phelps asked that Berry telephone his superior, Judd,
in an effort to find another solution to the problem. Berry telephoned Judd, con-
versed with him, and then told Phelps, as the latter testified, that "it was no go.
They [the two men] would have to leave." Berry also stated that "these gentlemen
could not be put in the union and our operation [Wand's] be continued."5
At some point in the conversation, Berry admittedly told Phelps that it would
take "a consigned [sic] contract" between Putnam and the AGC, apparently a ref-
erence to Putnam's signing up under the AGC contract, to straighten out Putnam
with Respondent. The trend of Respondent's thinking is disclosed by Berry's fur-
ther testimony that in Respondent's view Respondent was interested in a contract
which would bind Putnam on all construction jobs and not just with respect to the
two men on this particular job.
Phelps at this point expressed a desire to speak with Judd; Berry promptly tele-
phoned Judd and turned the telephone over to Phelps. According to Judd, H. W.
Waits, Jr., manager of the Klamath Falls Building Trades Construction Council
happened to be in his office at that moment and he asked Waits to listen in on
the extension phone. Waits testified that such was the case and that he participated
in at least part of the conversation. Judd did not recall any of the conversation
between Phelps and Judd. Phelps testified that he had spoken with Waits on vari-
ous occasions but did not recall talking with him on this occasion, or knowing that
someone else was on the line.
There is, however, no other substantial difference between the testimony of Phelps
and Judd. Phelps testified that he asked Judd if the two men could be put in the
Union, presumably Respondent, and continue working. Judd replied in the nega-
tive, stating that Putnam was a nonunion organization, that he wanted that organi-
zation to "be affiliated" with Respondent, and that he was interested in the entire
organization and not just the two men.6
Judd pointed out that Respondent had been experiencing difficulties with Put-
nam for some time, apparently a reference to Putnam's entry into the construction
field, and repeated that he wanted the entire organization. Phelps' testimony was
corroborated by Trumblee, who testified that after the talk Phelps stated to Trum-
blee and Berry that Judd wanted the entire organization in Respondent.
According to Judd, Phelps asked how the problem could be cleared up and he
informed Phelps that he wanted him to live up to the AGC contract. Judd ex-
plained herein that by this he meant that Wand had fallen down by employing a
nonunion concern. The testimony of Waits is to the same effect, viz, that Judd
and Phelps discussed the two Putnam men and that Judd told Phelps the AGC
contract would have to be lived up to by Wand. Phelps then stated that he desired
no union difficulty and would have Putnam removed from the job. Waits further
testified that he reminded Wand of still another contract between Wand and the
4 There is a partial conflict between the testimony of Berry and Phelps. The latter was
a clear and concise witness whose recollection impressed me as the superior and his testi-
mony has been credited when in conflict with that of Berry. The latter conceded, in this
instance, that he asked Phelps what Putnam men were doing on the job.
5 According to Berry, he asked Judd if the AGC contract was applicable to Wand, the
latter a nonsigner, and further whether any exception could be made for Putnam ; Judd
allegedly replied that no exception could be made. According to Berry, he did not mention
to Judd the offer of Wand to pay the initiation fees and dues.
9 At the time Putnam had approximately 100 employees and most of its work, it appears,
was in logging operations.
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 507
local Building Trades Construction Council wherein Wand had agreed to employ
only workmen in good standing in labor organizations affiliated with the Council;
this of course included Respondent.
I deem it unnecessary to resolve the conflict herein in all of its ramifications.
Firstly, Phelps was interested in getting the job done and he was not likely to
exaggerate Judd 's remarks on the Putnam situation ; this tends to support his tes-
timony which has been previously credited. And, as noted, Respondent had made
no effort to organize the Putnam men on the job . Moreover , even in the face of
Judd's testimony, it is clear that Judd was objecting to the employment by Wand
of a nonunion contractor, Putnam, and wanted Wand to live up to the AGC con-
tract, allegedly binding Wand, by ceasing to utilize this nonunion subcontractor.
This, of course, is consistent with Phelps' testimony that Judd expressly disclosed
his interest in a contract covering all of Putnam 's employees . Accordingly , I credit
Phelps' testimony to this effect.
I find, therefore, that Wand was told by Judd that the two Putnam employees
would not be admitted into membership in Respondent and that Wand was in vio-
lation of its contract with Respondent by utilizing Putnam and Putnam help. As
Phelps testified , when the telephone call was made it was understood between
Phelps and Berry that unless Respondent authorized the use of the two Putnam
men, Wand would have to cease operating with Putnam help. I so find. .
Berry had no allusions about this for he and Phelps , after the telephone conver-
sation, discussed the problem of relieving the two Putnam men from the job because
at that moment the two men had a truck partially loaded with supplies. Berry
agreed that the two men could finish that particular load. Phelps then instructed
Trumblee in the presence of Berry to notify the two men that they were through
and to leave the job site . He also instructed Trumblee, on this occasion , to cease
operations with Putnam men until they were straightened out with the Union.
Berry then left the premises.
Trumblee, as he testified, promptly informed the two Putnam employees that
they would have to get straightened out with Respondent before they could per-
form any further work on the job. Keener, one of the two, testified substantially
in accord with Trumblee, but added that he was uncertain whether Trumblee told
the men to arrive at some agreement with Respondent or rather to get straightened
out with Respondent . I find that in both alternatives there is a requirement for
union clearance at the very minimum.
The men having been instructed to finish their previously started load before
leaving, they proceeded to do so. About one-half or three-quarters of an hour later,
apparently just before the men left , Phelps informed them that he had offered to
pay whatever initiation fees or dues Respondent might require but that the offer
had been rejected. As appears previously, Phelps made the offer to Berry, but the
latter testified that he never relayed it to Judd. According to Keener , Phelps also
stated that Respondent was not interested solely in the two men but was interested
rather in the entire Putnam complement of personnel . The men then left the job.
They were never recalled by Wand and Wand did not thereafter contact Putnam,
although Putnam was later paid for the time the men had put in on the job.
Wand promptly arranged to obtain another contractor to take over the Putnam
work. This other contractor finished the work approximately 6 weeks later, al-
though it appears that this was not full-time work on his part . It may be noted
that the new contractor encountered no difficulty with Respondent because his
equipment differed from that of Putnam and accordingly the work fell within the
jurisdiction of another labor organization.
I find, in view of the foregoing , that Respondent demanded that Wand cease
doing business with Putnam and remove Putnam men from the job. I further find
that Wand, after failing to persuade Respondent to accept a more lenient course of
action, or indeed any other course of action , yielded to this ultimatum . It is obvi-
ous, and I find, that Respondent Union caused Wand to take this action and thereby
caused the removal of the employees from the job.
C. Contentions and conclusions
(1) Respondent adduced evidence to the effect that the general contractor , Fuller,
was bound by the AGC contract with Teamsters and that as a result the contract,
pursuant to its subcontractor clause, was binding upon Fuller's subcontractors, viz,
Wand and Putnam. Treating first with the problem of Fuller's alleged contract
with Teamsters , Financial Secretary Judd of Respondent testified that a prejob con-
ference was held with a representative of the Fuller Company , one Swan, by all
interested labor organizations including Teamsters , at which Swan agreed to live
up to the terms of the AGC contract with Teamsters heretofore described. Signifi-
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cantly, Judd admitted that this conference was held before construction had started.
The contract, according to Judd, was not presented to Swan at the time of another
conference held soon after work had started because Swan "already had it."
As is apparent from the foregoing, Fuller, apparently not a member of Portland
Chapter AGC, agreed to be bound by this contract at a time when it had no
employees on this construction project. The contract is a labor contract which
covers the basic aspects of the employer and employee relationship, and expressly
states in its preamble that it is a binding agreement "for the purpose of governing
the employment of individual members of the Union [Council 37] by the Con-
tractor." There is also established a union shop contingent upon qualification with
the provisions of Section 8(a)(3) of the Act.
It is by now well settled that a prehire contract of this type, entered into before
any employees are on the job, is violative of the Act and is accordingly not open
as a defense to Respondent herein with respect to Wand or Putnam as purported
subcontractors allegedly bound by the subcontractor clause. This is so because
the employees of the general contractor, just as is the case with the employees
of the subcontractors discussed below, have had a bargaining representative not
of their own choosing foisted upon them. Hibbard Dowel Co., 113 NLRB 28;
Safeway Stores, Incorporated, 111 NLRB 968; Universal Food Service, Inc., 104
NLRB 1; International Metal Products Co., 104 NLRB 1076; and John B.
Shriver Company, 103 NLRB 23.
(2) It is a further contention, on the assumption that the Fuller contract was
not an unlawful prehire contract, that article IV thereof captioned "Sub-Contrac-
tors" is binding upon Wand and Putnam and is therefore a defense in this pro-
ceeding. This article provides as follows: "The terms and conditions of this
Agreement affecting the Contractor shall apply equally to any sub-contractor em-
ployed by the Contractor on work covered by this Agreement, and likewise to
any sub-contract which the Contractor shall enter into. A sub-contractor is one
who takes over any part or a complete section of a general contract, including
both the furnishing of material for, and the performance of labor on the job."
It is clear, and I find, that this article is intended to make the contract appli-
cable to any portion of the work turned over to a subcontractor or his subcon-
tractor and as a result would ostensibly be applicable to the employees of Wand
and Putnam.
A brief consideration of the subcontractor clause will readily demonstrate that
it is flagrantly violative of the Act. Section 7 of the Act guarantees employees
the right to "self-organization, to form, join, or assist labor organizations, to bar-
gain 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" as well as the right to refrain from any or all such activities.
Section 8(a)(5) of the Act imposes the obligation on an employer to bargain
collectively with a labor organization as the representative of his employees. Ob-
viously employees allegedly bound by such a clause have not chosen a labor
organization to represent them, a right guaranteed them under the Act; to the
contrary, the general contractor, not even their employer, has decided this for
them and foisted such representative upon them.
Section 8(a)(3) of the Act forbids all discrimination by an employer but for
a narrow exception which permits a limited union shop under certain specified
circumstances only where the labor organization is the majority representative of
the employees as provided in Section 9(a) of the Act. Obviously this cannot be
the case in a prehire contract. Radio Officers' Union of The Commercial Teleg-
raphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17.
To hold that a labor organization which does not represent the employees of
Putnam, or of Wand for that matter, and members of the AGC signatory to the
contract who do not directly employ these workers may by contract impose a
bargaining representative not of their own choosing upon such workers is to fly
in the face of the basic core of the Act's objectives. This is so because Section 7
specifies the right "to bargain collectively through representatives of their own
choosing." Accordingly, I find that the subcontractor clause because of its in-
trinsic illegality cannot serve as a defense to Respondent herein?
(3) That the demand upon Wand was the proximate cause of the loss of em-
ployment by Keener and Parker and that Respondent as a result brought about
or caused their ouster from the job is obvious. But for the intervention of Re-
spondent's representative the two men would not have lost their employment on
7For an extended discussion on this topic see 119 NLRB 1026 (Intermediate Report).
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 509
this project. Indeed, there is no evidence of any other contributing cause, remote
or otherwise.
For Respondent's conduct to constitute a violation of Section 8(b)(2) of the
Act it must have caused or attempted to cause "an employer to discriminate
against an employee in violation of (a)(3)" of the Act [emphasis added]. First
approaching that issue, it is readily apparent that Wand has engaged in such a
discrimination. Wand was the contractor with Putnam for the work, had the
authority to terminate the contract and thereby exclude Putnam and Putnam em-
ployees from the job, and proceeded to do precisely that because the employees
were not members of Respondent. Even if the subcontractor clause were legal,
the two employees were not given the 30 days required by the statute to perfect
union membership.
Although Wand is not before the Board in this proceeding, it is clear, and I
find, that Wand's conduct constitutes discrimination within the meaning of Section
8(a)(3) of the Act. Radio Officers' Union, supra. It would appear to automati-
cally follow that Respondent's conduct was, as a result, violative of Section 8(b)(2)
of the Act, and further of Section 8(b)(1)(A). As the Board aptly stated in
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry, etc., Plumbers and Steamfitters Local Union No. 234 (Carrier
Corporation), 112 NLRB 1385, 1387:
In this case, the Respondents resorted to economic pressure-not the direct
type usually associated with 8(b)(2) violations-but an indirect type of pres-
sure calculated to force Turner [the subcontractor] through Carrier [the con-
tractor] to engage in discriminatory conduct. Thus, because of the business
relationship between Carrier and Turner, the former was in a position to
influence effectively the personnel policies of the latter. Carrier had the power,
notwithstanding any possible responsibility for damages, to terminate any exist-
ing contract with Turner and to withhold the award of future contracts.
Cognizant of this power, the Respondents ordered its members, the super-
visory employees of Carrier, to shut down the job in order to cause Carrier
to terminate its subcontract with Turner, unless the latter complied the Re-
spondents' discriminatory objective. In this posture, it is obvious that the
Respondents were applying potent economic coercion against Turner. While
we do not say that any kind of indirect pressure is prohibited, we hold, with
judicial approval, that Section (b)(2) proscribes indirect pressure of this char-
acter as well as direct pressure to induce employee discrimination.5 The test
is not whether the pressure is direct or indirect, but whether it is intended to
cause a violation of Section 8(a)(3) and whether it is reasonably calculated
to bring about that result. It is clear that the pressure in this case, applied
through another employer, meets this test. Accordingly, we find that the
Respondents violated the Act by attempting to cause Turner to discriminate
against its employees. [Emphasis supplied.]
Local Union No. 55, and Carpenters ' District Council of Denver, et at. (Pro-
fessional and Business Men's Life Insurance Company ), 108 NLRB 363, enfd. 218
F. 2d 226 (C.A. 10).
This presents for consideration a more recent line of cases where the Board, if
I interpret the decisions correctly , appears to have deviated from the principle
stated in the last cited case.
In an earlier case, the Austin case, the Board held that Austin , a general con-
struction firm which had contracted with Pinkerton to supply guards for a con-
struction project, had violated Section 8(a)(3) of the Act by cancelling the Pinker-
ton contract at the request of a labor organization because the guards were not
union members . The Board expressly placed reliance on the fact that although
there was no employer -employee relationship between Austin and the guards, there
did exist "an intimate business relationship " between Austin and Pinkerton, viz,
Austin's veto power over Pinkerton personnel in that the Austin-Pinkerton contract
provided that guards not acceptable to Austin were to be removed and replaced.
Austin Company , 101 NLRB 1257.
Despite language in more recent decisions cited below directing attention to the
foregoing facet of the Austin decision , that case also pointed out, as is discussed
below, that the Act
precludes any employer from discriminating with respect to any employee,
for Section 8(a)(3) does not limit its prohibitions to acts of an employer vis-
a-vis his own employees . Significantly , other sections of the Act do limit their
coverage to employees of a particular employer . Thus, Section 8(a) (5) makes
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it an unfair labor practice for an employer "to refuse to bargain collectively
with the representative of his employees . . ." and Section 8(b) (4) (B) pro-
hibits a labor organization from striking to force or require any other em-
ployer to recognize the labor organization "as the representative of his em-
ployees.. . Thus, the omission of qualifying language in Section 8(a)(3)
cannot be called accidental . Moreover , Section 2(3), in defining the term
"employee," provides that the term ". . . shall not be limited to the employees
of a particular employer, unless the Act explicitly states otherwise...." The
statutory language therefore clearly manifests a congressional intent not to
delimit the scope of Section 8(a)(3) in the manner urged here by Respondent
Austin.' [Emphasis supplied.]
' The Supreme Court, in different factual situations, has recognized, and attached
great weight to, this lack of delimiting language in Section 8(a) (3). In N.L.R.B. v.
Hearst Publications, Inc., et at., 322 U.S. 111, that Court said, "Congress . . . was
not thinking solely of the immediate technical relation of employer and employee.
It had in mind at least some other persons than those standing in the proximate
legal relation of employee to the particular employer involved In the labor dispute."
And in Phelps Dodge Corp. v. N.L.It.B., 313 U.S. 177, the Court said, "The broad
definition of `employee,' `unless the Act explicitly states otherwise,' . . . expressed
the conviction of Congress `that disputes may arise regardless of whether the dis-
putants stand in the proximate relation of employer and employee. .. '
The Board then refrained expressly from delineating the area in which an em-
ployer may violate Section 8(a)(3) despite the absence of a direct employer-
employee relationship.
In the Carrier case supra, the Board appeared to reaffirm the broad implications
so aptly stated in the Austin case. There the Board noted, as set forth above:
. . because of the business relationship between Carrier and Turner , the former
was in a position to influence effectively the personnel policies of the latter. Car-
rier had the power , notwithstanding any possible responsibility for damages, to
terminate any existing contract with Turner . . . . Section 8(b)(2) proscribes indi-
rect pressure of this character as well as direct pressure to induce employee dis-
crimination. . . .
Despite circumscribing language in subsequent decisions , the simple fact is that
in Carrier the Board did find a violation of Section 8(b)(2) based upon pressure
exerted not directly upon the employer but upon Carrier who had contracted with
Turner, the employer . Significantly , the decision is silent concerning the existence
of any clause in the contract similar to that found in the Austin case.
A recent case is illustrative of the departure from the foregoing doctrine. The
Great Atlantic & Pacific Tea Co. et al., 116 NLRB 943, 946. There the Board
overruled findings of unfair labor practices involving Section 8(a)(3) and (1) and
Section 8(b)(2) and (1)(A) of the Act. In that case A & P had orally con-
tracted with independent truckers to deliver and unload material at an A & P
terminal . The employees of the independent truckers lacked clearance from the
respondent labor organization which demanded that the A & P terminal manager
have the men clear themselves with that organization . The latter ordered the
employees to leave and obtain such clearances . The Board went on to point out:
In our opinion , the facts of the instant case are readily distinguishable from
those in the Austin case. The Company was under no contract with the
truckers which accorded it any appreciable measure of control or "veto power"
such as was provided for expressly in the Austin -Pinkerton agreement; the
Company neither regulated nor controlled the employment of the unloaders
who were employed by the truckers ; and the truckers had no relationship with
the Company other than that which was necessary to enable them to make
deliveries.
In the Carrier case,3 the Board delimited the Austin rules by declining to
extend its application to a situation where the formal veto power , as existed
in the contractual relationship in the Austin case, was absent . Likewise, in
the Standard Oil case,4 the Board pointed out that "the facts in Austin Com-
pany, particularly the contract there involved ," made that case inapplicable
8 United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the U.S. and Canada, AFL (Carrier Corporation), 112 NLRB 1385.
4 Los Angeles Building and Construction Trades Council , AFL (Standard Oil Com-
pany of California ), 105 NLRB 868.
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 511
to the situation under consideration . And recently in the Frick case,5 the
Board found that as there was no evidence that a contractor was invested
with any control over the terms and conditions of employment of a subcon-
tractor's employees to constitute the contractor an employer of these em-
ployees, the union did not cause the contractor to discriminate within the
meaning of the Act. In so holding, the Board stated that since the Austin
case, it has been its policy that, for the purpose of Section 8(a)(3) and
Section 8(b)(2), a general contractor was not an employer of a subcon-
tractor's employees unless he possessed sufficient control over the employment
relationship as to constitute him a joint employer of these employees. The
Board made it clear that it deemed it crucial to its resolution of the issue to
determine whether the general contractor had "sufficient contractual control
over the subcontractors' employees." 6 We find that the rationale of these
cases is equally applicable here.
Under these circumstances, and on the basis of the record as a whole, we
find, contrary to the Trial Examiner, that the Company and the independent
truckers did not have such an intimate business relationship as to constitute
the Company the employer of the three complainants. Accordingly, we con-
clude that the Respondent Company did not discriminate against the com-
plainants within the meaning of Section 8(a)(3), and that the Respondent
Union did not cause the Respondent Company to discriminate in violation
of Section 8(b)(2).7
Accordingly, we shall dismiss the complaints against the Respondents in
their entirety. [Emphasis supplied.]
5 United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the U.S. and Canada, AFL, 116 NLRB 119.
Cf. West Texas Utilities Company, 108 NLRB 407, where the Board relied on
the existence of a formal contract provision giving the general contractor the right
"to remove any employee from work" to find a general contractor an "employer" of
its subcontractor's employees.
7 In view of our determination herein, we deem it unnecessary to pass on the
other defenses and contentions of the Respondents.
However , in a more recent case there appears to have been at least a partial
departure from the foregoing and return to the Austin rule . See Morse Brothers,
Harrisburg Sand and Gravel Co., et al., 118 NLRB 1312, where the Board
adopted the Trial Examiner 's findings of unfair labor practices against a labor
organization predicated in large measure on pressure exerted not on the employer,
Morse Gravel Co., but on the general contractor, Shields, to whom Morse was
delivering concrete . As the Trial Examiner stated "It is undisputed that prior to
September 7, 1956, the Union did not represent a majority of the employees of
the Company [Morse] in an appropriate unit for collective bargaining . Neverthe-
less, on that date the Union initiated picketing on the Shields job site for the pur-
pose of forcing the Company to assist it, in forcing the Company 's employees to
join the Union . . It is clear that Morse Brothers was not at first a willing
partner of the Union, but when faced with the economic pressure placed upon it
by the Union, through Shields, Morse Brothers surrendered. . . [Emphasis
supplied.]
All of the foregoing demonstrates , it is true, that when an approach is made to
this issue on the basis of "contractual control" over employees , or the presence
of an "intimate business relationship ," an employer and a labor organization may
well be absolved of unfair labor practices if the employer does not have contrac-
tual control over employees so as to render them his own, for practical purposes,
within the meaning of the Austin case, supra.
But there is a more basic approach in which a violation may be committed and
this is the area indeed which the Board itself recognized in the Austin case and
in fact applied in the Carrier decision. The fact is that the ban of Section 8(a)
(3) is directed to, within the language of the statute, "an employer " discrimi-
nating in regard to hire or tenure of employees . There is no mention of discrimi-
nation with respect to his own employees. As the Board noted in the Austin
decision , other sections of the Act do limit their coverage to employees of a par-
ticular employer. The Board decided that the omission of such qualifying lan-
guage in Section 8(a)(3) could not be deemed accidental . More significantly, the
Board further noted that the definition of employee in the Act specifically stated
that the term "shall not be limited to the employees of a particular employer un-
less the Act explicitly states otherwise."
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With all due, respect, to the more recent Board decisions, the issue in logic is
not whether an employer has "contractual control" over the employees involved,
but rather whether he had the de facto or actual authority to remove them from
the job; whether he proceeded to do so; and thus, as a result, whether he thereby
caused a discrimination with respect to their tenure of employment because of
their union activities or lack thereof. Any other view flies in the face of the
broad language of the Act set forth above and fails to take cognizance of the
objectives of the Act and the realities of the situation.
Even on the criterion of "control" over employees, what better evidence of
control.is there than the situation where the general contractor literally ousts the
employees of his subcontractor from the job and terminates his contract with the
subcontractor. I am at a loss to comprehend how the presence or absence of
"contractual control" can add to or detract from this situation. The simple fact
is that the contractor in this case, Wand, had exercised his prerogative to termi-
nate the contract and oust employees of Putnam from the job because of their
absence of union membership or activity pursuant to pressure from Respondent.
This is direct action, directly caused by Respondent, and carried out by the party,
Wand, who has control over the work being done for him. Indeed there was no
management representative of Putnam on the job and for all practical purposes
if any supervision was needed it would have had to come from Wand.
It may be claimed that there can be no discrimination because the employer
did not discharge the employees of the subcontractor. The simple answer is that
the employer, acting within his authority as an employer, who meets the Act's
definition of an employer, has nevertheless accomplished a discrimination with
respect to the "tenure of employment" of employees who meet the Act's definition
of employees.
As for the responsibility of Respondent, the fact that the coercive thrust is
exerted upon these employees by means of an intermediary or agent who has
effective control over their employment cannot operate to relieve a labor organi-
zation or an employer of responsibility any more than the instigator of a crime
can be absolved by the fact that the crime was accomplished through the agency
of a hired or coerced accomplice. And in this case, it is noteworthy, as appears
below, that negotiations for union membership of Putnam employees were carried
on by Respondent and a representative of Wand.
In Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, the employer unsuc-
cessfully contended that it was not an unfair labor practice to refuse employment
to one not his employee. The Court responded that . disputes may arise
regardless of whether the disputants stand in the proximate relation of employer
and employee. .
In N.L.R.B. v. Russell Manufacturing Co., 187 F. 2d 296 (C.A. 5), the court
recognized the issue and set aside a Board order in part on the ground that the
corporate defendant had no knowledge of the acts of an individual and had no
"control" over certain individual respondents. This can hardly be argued in the
instant case where Wand did indeed exercise its control not only to oust the two
complainants but further to break off business relations with the employer of the
complainants.
In Utah Construction Co., 95 NLRB 196, 203, the Board approved the Phelps
Dodge rationale with respect to an employee of a railroad whom the employer
discriminatorily refused to hire.
In American Newspaper Publishers Association v. N.L.R.B., 193 F. 2d 782
(C.A. 7), the court pointed out that the use of the term "an employee" under
Section 8(b)(2) of the Act was not limited to a particular employee. See also
International Union, United Mine Workers et al. (Jones & Laughlin Steel Corp.)
v. N.L.R.B., 184 F. 2d 392 (C.A., D.C.).
In N.L.R.B. v. Carpet, Linoleum and Resilient Tile Layers, Local Union No.
419, etc. (Lauren Burt, Inc.), 213 F. 2d 49 (C.A. 10), the court enforced a Board
finding of discrimination with respect to an employee on loan to another company
not engaged in commerce under the Act.8 The court pointed out that except for
statements made by the respondent labor organization to the employer who had
loaned out the employee, the latter would have returned to his original job.
Finally, in Radio Officers' Union, supra, the Supreme Court pointed out that
the Act does not require that the employees discriminated against be the ones
encouraged for purposes of making out a violation of Section 8(a)(3) of the Act.
.8 In this respect compare United Association of Journeymen and Apprentices, etc.,
Local 420 (The Frick Company, et al .), 116 NLRB 119, 120.
LOCAL 911, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 513
This is not to say that in all cases of pressure on an employer not the employer
of the employees who are the ultimate object of the pressure a chain of direct
causation is made out, for in some cases the chain may indeed be a remote or
tenuous one. But there is nothing remote or nonproximate about the present case
where direct action was sought by Respondent and direction action was taken
against specific individuals by the party who was the object of the pressure and
who had the actual power to oust them from the job. Wand was in no different
position than any other employer who is warned by well-established doctrine to
resist all pressures, no matter how great, to compel the commission of unfair
labor practices. N.L.R.B. v. Lloyd A. Fry Roofing Company, et al., 193 F. 2d 324
(C.A. 9); J. A. Utley Company v. N.L.R.B., 217 F. 2d 885 (C.A. 6); and
N.L.R.B. v. Hudson Motor Car Company, 128 F. 2d 528 (C.A. 6).
For, as Member Jenkins recently stated in a concurrence, "While mystical se-
mantics may have their place as an intellectual exercise, they have no place in the
interpretation of a statute designed to effectuate an economic policy. The statute,
if it is to accomplish its avowed purpose, must be construed in the light of the
economic realities of commercial life. Many who would resist physical coercion
with a stout heart quail before the fear of economic reprisal." Drivers, Chauffeurs
and Helpers Local 639, etc. (Curtis Brothers, Inc.), 119 NLRB 232. I believe it
to be obvious that a contrary view, permitting the subterfuge of exerting pressure
on one other than the direct employer ignores the congressional objective in the
Act of insulating employers and employees not directly concerned with a dispute
from its complications.
In sum, considering the broad language of the statute and taking cognizance
of its objectives, one is impelled to conclude that Wand discriminated against these
employees within the meaning of Section 8(a)(3) of the Act and that Respondent
caused Wand, an employer, to so discriminate. 1 accordingly find that Respondent
has thereby engaged in unfair labor practices within the meaning of Section 8(b)
(2) of the Act. I further find that by such conduct, Respondent has coerced em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act and has
engaged in conduct violative of Section 8(b)(1)(A) of the Act.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Wand and Putnam described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent caused Wand to discriminate against James
Keener and Gideon Parker and it will be recommended that Respondent make
them whole for any loss of pay suffered by reason of the discrimination against
them. It appearing that their employment on the Wand project would have ended
at a later undetermined date for nondiscriminatory reasons, reinstatement will not
be recommended. Said loss of pay, based upon earnings which Keener and Parker
normally would have earned from the date of the discrimination against them,
March 6, 1957, to the date their employment on the Wand project would other-
wise have terminated, less net earnings, shall be computed in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B.
v. Seven-Up Bottling Company, 344 U.S. 344.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Wand and Putnam are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
'In view of the foregoing conclusions, I deem it unnecessary to pass on whether
Respondent also attempted to cause Putnam to discriminate against its employees, for
the remedy therefor would be similar to that hereinafter recommended.
505395-59-vol. 122 34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By causing an employer to discriminate against James Keener and Gideon
Parker in violation of Section 8(a)(3) of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section 8(b) (2) of the Act.
4. By the foregoing conduct, Respondent has restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES OF NED PUTNAM AND WAND CORPORATION AND To
ALL MEMBERS OF LOCAL 911 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause Wand Corporation or any other
employer whose operations affect commerce to discriminate against any em-
ployee in violation of Section 8(a)(3) of the Act.
WE WILL NOT restrain or coerce employees in the right to refrain from
engaging in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent that such right may be affected by an agreement executed
in conformity with Section 8(a)(3) of the Act.
WE WILL make whole James Keener and Gideon Parker for any loss of
pay suffered as a. result of the discrimination against them.
LOCAL 911 , INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Joint Council of Teamsters No. 37 and Local No. 501, each
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen, and Helpers of America and Warren Z.
Payne and Locals Nos. 162, 58, 900, 569, 324, 321 , 962, 911, 883,
57, 689, each affiliated with Joint Council No . 37 and Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men, and Helpers of America , and Portland Home Builders
Association , Inc., Parties to the Contract. Cabe No. 36-CB-141.
December 18, 1958
DECISION AND ORDER
On October 7, 1957, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above -entitled proceeding finding
122 NLRB No. 72.