Mark R. Kunkel Plumbing

National Labor Relations Board - Board Decisions

Feb 14, 1958

119 N.L.R.B. 1623 (N.L.R.B. 1958)

MARS R. KUNKEL PLUMBING 1623
believe that the tuning of the Regional Director 's investigation of the
charges affected the results of the election . Therefore we find this
,objection without merit.
As we have found the Employer 's objections to be without merit,
they are hereby overruled , and as the tally of ballots shows that the
Petitioner received a majority of the valid ballots cast, we shall
certify the Petitioner as the collective -bargaining representative of
the employees in the appropriate unit.
[The Board certified United Packinghouse Workers of America,
AFL--CIO, as the collective -bargaining representative of the em-
ployees of the Employer in the appropriate unit.]
Mark R. Kunkel, an individual doing business as Mark R. Kunkel
Plumbing and Demesio V. Medina
Local Union #761 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO and Demesio V. Medina.
Cases Nos. 91--CA-29648 and P31-CB-861. February 14, 1958
DECISION AND ORDER
On June 4, 1957, Trial Examiner Herman Marx issued his Inter-
-mediate Report in the above-entitled proceedings, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate, Report attached hereto. Thereafter, the Respondents filed
,exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Rodgers, Bean,
and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
-Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modification noted below.'
1 The Trial Examiner's recommendation with respect to the Respondent Union's liability
for back pay is modified to the extent that the Respondent Union shall not be liable for
any back pay accruing 5 days after it serves upon Kunkel and Medina the notice of with-
drawal of objection to Medina 's employment, as provided in our Order herein.
119 NLRB No. 204.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Mark R. Kunkel, an individual doing business
as Mark R. Kunkel Plumbing, Los Angeles, California, his agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in Local Union #761 of the United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, or
in any other labor organization of its employees, by discharging any
employee because of his nonmembership in that organization, or in
any other manner discriminating against any employee in regard to
his hire or tenure of employment, or any other term or condition of
employment, except as authorized by Section 8 (a) (3) of the Act.
(2) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
b.- Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer Demesio V. Medina immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and jointly and sever-
ally with Local Union #761 of the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, make him whole for any
loss of pay he may have suffered by reason of the discrimination
against him, according to the method set forth in section V of the
Intermediate Report entitled "The Remedy," as modified in the
Board's Decision and Order herein.
(2) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of back pay due
and the rights of employment under the terms of this Order.
(3) Post at his place of business in Los Angeles, California, copies
of the notice attached to the Intermediate Report marked "Appendix
MARK R. KUNKEL PLUMBING 1625
A." 2 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the
Respondent, Kunkel, be posted by him immediately upon receipt
thereof, and maintained by him for at least sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(4) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps Respondent Kunkel has taken to comply herewith.
II. The Respondent, Local Union #761 of the United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, its officers, rep-
resentatives, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Causing or attempting to cause Mark R. Kunkel, an individual
doing business as Mark R. Kunkel Plumbing, or any other employer,
to discharge employees or in any other manner discriminate against
them, except as authorized by Section 8 (a) (3) of the Act.
(2) In any other manner restraining or coercing employees of
Mark R. Kunkel, an individual doing business as Mark R. Kunkel
Plumbing, or any other employer, in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Mark R. Kunkel, an individual
doing business as Mark R. Kunkel Plumbing, make Demesio V.
Medina whole for any loss of pay he may have suffered by reason of the
discrimination against him in the manner set forth in section V of
the Intermediate Report entitled "The Remedy," as modified in the
Board's Decision and Order herein.
(2) Notify Mark B. Kunkel, an individual doing business as Mark
R. Kunkel Plumbing, of Los Angeles, California, and Demesio V.
Medina, in writing, that it has no objection to Medina's employment
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the said Mark R. Kunkel, and request the said Mark R. Kunkel
to offer Demesio V. Medina immediate and full reinstatement to his
former, or a substantially equivalent, position without prejudice to,
his seniority or other rights and privileges.
(3) Post at its business offices and usual membership meeting
places in Los Angeles, California, copies of the notice attached to the
Intermediate Report marked "Appendix B." 3 Copies of said notice,,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by an authorized representative of the
said Respondent Union, be posted by it immediately upon receipt
thereof, and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by it to insure that said notices are not altered, defaced, or
covered by any other material.
(4) Mail copies of the said notice marked "Appendix B" to the
said Regional Director, after such copies have been signed as provided
in paragraph II b (3), above, for posting at the place of business of
the said Mark R. Kunkel, if he so agrees.
(5) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps the said Respondent Union has taken to comply herewith.
3 See footnote 2.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding .stems from two charges filed by an individual named Demesio V.
Medina with the National Labor Relations Board (also designated herein as the
Board). One charge was filed on January 7, 1957, in Case No. 21-CB-861
against Local Union #761 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO
(also referred to herein as the Union or the Respondent Union); and the other
on February 8, 1957 in Case No. 21-CA-2648 against Mark R. Kunkel Plumbing
Company.' On March 25, 1957, pursuant to the Board's Rules and Regulations,
Series 6, the Regional Director for the Twenty-first Region of the Board duly
entered an order consolidating the two cases. Based upon the charges, the
General Counsel of the Board issued a complaint on March 25, 1957, alleging
that the Union and Mark R. Kunkel Plumbing had engaged in and were engaging
in unfair labor practices within the meaning of the National Labor Relations Act,
as amended (61 Stat. 136-163), also referred to below as the Act. Each of
the Respondents has been duly served with a copy of the charge applicable to it,
the order of consolidation, and the complaint.
With respect to the alleged unfair labor practices, the complaint alleges, in
sum, that: On or about October 22, 1956, Mark R. Kunkel Plumbing, an employer,
discharged Medina "because he was not a member of Respondent Union," although
the said Employer "knew that membership had been denied him [Medina] on grounds
other than his failure to tender the initiation fees and periodic dues uniformly
required as a condition of acquiring or retaining membership"; by such discharge
1 The caption in the pleadings states the name of one of the Respondents as Mark R..
Kunkel Plumbing. The evidence establishes that that is a trade name under which an
individual named Mark R. Kunkel does business . The caption has been amended to con-
form to the evidence.
MARK R. KUNKEL PLUMBING 1627
Mark R. Kunkel Plumbing violated Section 8 (a) (1) and 8 (a) (3) of the Act;
the Union caused or attempted to cause Mark R. Kunkel Plumbing "to discharge
Medina for reasons other than his failure to tender the initiation fees and periodic
dues uniformly required as a condition of acquiring or retaining membership";
and that by such conduct the said Union violated Section 8 (b) (1) (A) and
8 (b) (2) of the Act.
Each of the Respondents has filed an answer which, in substance, denies the
commission of the unfair labor practices imputed to such Respondent in the
complaint.
Pursuant to notice duly served upon all parties, a hearing was held before me,
as duly designated Trial Examiner, on April 22, 1957, at Los Angeles, California.
Each of the parties, with the exception of Medina, was represented by counsel
at the hearing and participated therein. The parties were afforded full opportunity
to be heard, examine and cross-examine witnesses, adduce evidence, file briefs,
and submit oral argument. No briefs have been filed.
FINDINGS OF FACT
Upon the entire record, and from my observation of the witnesses, I make
the following findings of fact:
1. NATURE OF KUNKEL'S BUSINESS; JURISDICTION
Mark R. Kunkel Plumbing is a trade name under which an individaul named
Mark R. Kunkel (also referred to herein as Kunkel) engages in the plumbing
contracting business in Los Angeles, California.
Kunkel is a member of an organization of employers known as the Plumbing-
Heating and Piping Employers Council of Southern California (referred to below
as the Council). The Council exists, in part, for the purpose of negotiating and
entering into collective-bargaining agreements, on behalf of its members, with
a group of labor organizations, of which the Union is a member. The Council
on behalf of its members (including Kunkel) entered into such an agreement
with the Union and other labor organizations on July 1, 1952. The contract,
which, as amended, is still in effect and has been binding upon Kunkel at all
times material to this proceeding, prescribes wage rates and other terms and
conditions of employment for individuals employed in various classifications by
the members of the Council. By reason of their joint bargaining activities, the
Council and its members constitute a single employer, at least for the purpose
of determining the Board's jurisdiction. It is thus appropriate to base the asser-
tion of jurisdiction over the subject matter of this proceeding on the aggregate
interstate commerce operations of any members of the Council. Insulation Con-
tractors of Southern California, Inc., 110 NLRB 638, and cases cited.
As the complaint alleges, and the Respondents admit, during the year 1956
members of the Council "furnished supplies and services valued at more than
$100,000 to companies which ship goods valued at more than $50,000 outside
the State of California, and also furnished goods and services directly related
to national defense pursuant to contracts with the United States Government valued
in excess of $100,000." By reason of such activities in and affecting interstate
commerce, and their status as a single employer, as described above, the Council
and its members, including Kunkel, have been, at all times material to the resolu-
tion of the issues in this proceeding, engaged in interstate commerce within the
meaning of the Act, and in operations affecting such commerce. Insulation
Contractors of Southern California, Inc., supra. Accordingly, the Board has
jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and each of the answers admits, the Union is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
A description of some of the provisions of the contract in effect between the
Council and the Union is appropriate as a background for a resolution of the
issues. The agreement , by its terms ( section I), applies to "all employees of the
Contractors [ the Council 's members ] employed to perform or performing all
plumbing, heating and piping work," as defined in an attachment to the contract.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section IV (A) of the agreement provides that "any employee performing work
shall be paid at the rate of the classification his work calls for in accordance with"
hourly wage scales, which need not be detailed here, specified in the contract.
Section II (B) of the agreement provides, in part, "that journeymen [a term which
also includes apprentices by express contractual definition] employed by the
Contractors for a period of thirty ... days continuously or accumulatively within
the multi-employer unit . . shall become members of the appropriate Local Union
immediately upon terms and qualifications not more burdensome than those appli-
cable at such times to other applicants of such Union and, that after thirty . .
days of employment, as set forth above, the journeymen shall maintain their
membership in the Union as a condition of continued employment."
The Union requires an individual seeking membership in the organization to file
with it, in addition to a written application, affidavits substantiating the fact that he
has had 5 years of experience in performing plumbing or pipefitting work. After
these are submitted, the applicant is required to appear before the Union's executive
board for interrogation on the subject of his occupational efficiency; and then to take
an examination given by the Union's examining board. If the applicant passes the
examination and a "report" (not further elaborated in the record) is approved by
the executive and examining boards of the Union, the application and the report
are read at a meeting of the Union's members who then vote upon acceptance or
rejection of the application.
The Union and other labor organizations participate with employers in an
apprenticeship program which is administered by a joint committee of union and
employer representatives. A person who seeks to serve an apprenticeship in
plumbing or pipefitting work may file an application with the Union on a form
it provides. The application is then forwarded to the joint committee. That group
holds periodic aptitude tests for applicants. If an applicant achieves a sufficient
score, the joint committee arranges for his apprenticeship with a "qualified master
plumber."
Medina entered Kunkel's employ as a warehouseman in the early part of 1955
at a wage rate of $2.25 per hour. For some 4 years prior thereto, he had worked
for an employer identified in the record as Waterman Plumbing Company. While
so employed, he was primarily a truckdriver and warehouseman, although he also
performed some plumbing work. After entering Kunkel's employ Medina worked
as a warehouseman for about 2 months, and was then assigned to plumbing work
as an assistant to a plumber employed by Kunkel. Medina worked as an assistant
for about 5 months, until the end of the plumber's employment. When that
occurred, Kunkel increased Medina's hourly rate to $2.75 and assigned him to the
work of "setting plumbing fixtures" in "new houses." In the main, Medina per-
formed this work by himself. When his employment by Kunkel terminated on
October 23, 1956 (under circumstances to be described later), Medina's wage rate
was $2.85 per hour. This was substantially below the hourly wage scale prescribed
by the contract between the Council and the Union for journeymen plumbers. At
one point or another in 1955, while performing plumbing work for Kunkel, Medina
was licensed by the City of Los Angeles as a journeyman plumber, qualifying for the
license by passing an examination given by the city.
In or about April 1955, while working for Kunkel as a plumber's assistant,
Medina called at the Union's office and asked the organization's financial secretary,
Bill Porter, to inform him of the Union's requirements for admission to membership.
In reply, Porter described the Union's experience requirements and stated that
Medina would have "to show" that he met them. As Medina 2 could not meet the
experience requirements at the time, he asked Porter what he "would have to do to
become an apprentice." Porter replied that Medina should see "the apprenticeship
committee" (apparently the joint committee described earlier) concerning the
subject, and specified a date for Medina's appearance before that body.
About a week later, on the appointed date, Medina appeared before the
committee at the Union's headquarters. He told the. committee that he was em-
ployed by Kunkel and that the latter was willing to hire him as an apprentice. It
is not clear whether Medina informed the committee of the type of work he was
doing for Kunkel, since Medina testified at one point that he told the committee
that he "wasn't actually doing plumbing work," and at another that he "might have
© At one point in his testimony, Medina quoted Porter as saying that the Union re-
quired 5 years of experience as a journeyman ; elsewhere Medina testified that Porter said
that the requirement was 5 years of experience as an apprentice. The variance is of no
special moment. There is no doubt that Porter described an experience requirement of
5 years that Medina was unable to meet at the time.
MARK R. KUNKEL PLUMBING 1629
said [he] was working as a plumber." In any event, it is undisputed that one of the
committee members told Medina in effect that he should not be doing any plumbing
work for Kunkel. During the course of the discussion, the committee informed
Medina, who was 26 years of age at the time, that he was too old to meet the
apprenticeship age requirement. However, the upshot of the meeting was that the
committee gave Medina a form to complete, telling him that it would "be months
before we can call you" because the Union had "a list of . . . a lot of apprentices
ahead of you." Medina did not complete and file the form with the Union.
Medina made another inquiry of Porter at the Union's office about 4 months
later (apparently in or about August 1956) concerning the requirements for ad-
mission to membership, and received substantially the same reply as on the prior
occasion.
B. The alleged discharge
On October 22, 1956, Medina filed an application for membership in a plumbers'
local union which is located in Santa Monica, California. On the following morning,
an officer of the Santa Monica local telephoned William N. Fodor, business manager
of the Respondent Union, and informed Fodor of the application, telling Fodor
that Medina had stated in his application that he had worked for Waterman
Plumbing Company, and then for Kunkel for a 2-year period, and that he "had
been doing some plumbing work." 3 According to Fodor's testimony, the "main
reason" for the telephone call was that there is an arrangement between the Union
and the Santa Monica local "that when a person lives in a certain local's jurisdiction
he should be a member of that local union because he more or less will be coming
through that local union."
Shortly thereafter that morning, Fodor and Raymond I. Gibson, another repre-
sentative of the Respondent Union, drove to Kunkel's establishment, arriving there
at about 8:30 a. in. and parking in a driveway adjacent to Kunkel's shop (also re-
ferred to as a warehouse in the testimony). At the time of their arrival, Medina
was in the shop and was engaged in loading a truck preparatory to his departure
for a job site. There was another employee in the shop at the time. Fodor entered
the shop, called out an inquiry, apparently addressed to no one in particular,
whether there were any plumbers present,. and received no reply. At or about that
point, Kunkel appeared on the scene. Ascertaining from Kunkel that he had "a
Medina in his employ," and the latter's whereabouts in the establishment, Fodor
came over to Medina, identified and introduced himself, and in effect asked Medina
whether he held membership in a union? Medina produced a card reflecting mem-
bership by him in a local of the Teamsters Union while he was in the employ of
Waterman Plumbing Company, and showed the card to Fodor. The latter then
asked Medina whether he had filed an application with the Santa Monica local.
Upon Medina's reply that he had done so, Fodor inquired of Medina whether the
latter had stated in his application that "he worked for Waterman Plumbing and
was employed by Kunkel Plumbing as a plumber," and Medina replied that he had
made such statements in his application.
There is substantial conflict in the evidence as to what was said after that.
According to Medina's testimony, after he had replied to Fodor's inquiry con-
cerning the application to the Santa Monica local, Kunkel interposed with a state-
ment that Medina had not worked for him for 2 years, whereupon Fodor said to
Kunkel, "You have to do something about him" (Medina), and Fodor, Gibson,
and Kunkel walked out of the shop and engaged in some conversation which Medina
could not hear.
$ Although Fodor's account of the telephone call does not explicitly quote the Santa
Monica union official as stating that the application reflected that Medina had done some
plumbing work, it is fairly inferable from the context of Fodor's testimony that. the rep-
resentative of the Santa Monica local gave him information to that effect. In that con-'
nection, the following excerpt from Fodor's testimony may be, noted :
Q. And you knew Mr. Medina on his application said he had-been doing some
plumbing work?
A. Yes, sir.
* According to Medina, Fodor asked him whether he belonged "to the union," and in
"which local" he held membership. However, the sense of Medina's testimony at another
point is that he understood that Fodor was not inquiring specifically. about membership in
the Respondent Union.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Fodor and Gibson entered denials that the former made any statement to
the effect that Kunkel would have to do something about Medina. According to
Fodor, the remark Kunkel interposed was that Medina "had never worked there
[Kunkel's establishment] as a plumber." Gibson, on the other hand, testified that
Kunkel's statement was "He hasn't worked here as a plumber for two years."
According to Fodor, following Kunkel's remark, he (Fodor) told Medina that if
he wished to join the Union, he should come to the organization's headquarters.
Gibson's testimony does not quote Fodor to that effect. The sense of Gibson's
account is that he, Fodor, and Kunkel left the shop immediately after Kunkel's
statement, proceeding to the car of the Union's representatives. Fodor testified
in effect that as he and Gibson were about to drive off, Kunkel asked him to help
Medina gain admission to the Union, stating that Medina had a "city license
and . . . a family"; and that he (Fodor) replied that "if a man wants to get in
our union as a journeyman plumber send him down to the hall, tell him to bring
his affidavits with him and we will give him an examination to see if he can qualify."
Gibson testified in similar vein.
Kunkel's testimony differs in various respects from that of Medina, Fodor, and
Gibson, although more markedly from the testimony of the Union's representatives.
Unlike the other three witnesses, he does not depict himself as interposing any
remark at or about the point when Medina replied to Fodor's inquiry concerning
the application to the Santa Monica local. Stating that he was "scared" to disclose
to the Union's representatives that Medina was "doing plumbing finishing work"
because he (Kunkel) "probably was violating the union rules" and "knew what
Mr. Fodor's procedure would be" if he disclosed Medina's duties, Kunkel testified
at one point that when Fodor and Gibson "first came in, driving up," Fodor asked
him "who Medina was" and he replied that the employee was a warehouseman.
Elsewhere in his account, the sense of Kunkel's testimony is that he told Fodor that
Medina was a warehouseman "after he [Fodor] questioned Medina" and emerged
from the shop or warehouse and was about to drive off with Gibson. Although
denying at one point that he told Fodor that Medina "was performing plumbers'
work," Kunkel subsequently testified, "I am quite sure I told Mr. Fodor . . . after
we had our first conversation that he [Medina] had been doing some finish
plumbing." This statement, according to the sense of Kunkel's testimony, was made
after Fodor and Gibson had emerged from the shop and were about to drive off.
Subsequently, after stating, "I think about that time I told them [Fodor and Gibson,
as they were about to leave] that he [Medina] did go out on the finish truck,"
Kunkel testified that he did not remember whether he made such a statement to
Fodor and Gibson and could not "say . . . for sure" whether he told Fodor that
Medina "did plumbing." Although denying that either of the Union's represent-
atives demanded that he discharge Medina, Kunkel testified that "they said I had
to do something about him," but stated that he could not recall whether that state-
ment was made "out in the shop or whether it was at the car," and that "it could
be either place." According to Kunkel, also, as Fodor and Gibson were about
to leave, he asked Fodor why Medina could not gain admission to the Union in
view of his possession of a "city license," and Fodor replied, Kunkel testified, that
"he couldn't allow him in the union because he hadn't had the proper qualifications
and experience." However, Kunkel shortly thereafter testified that Fodor "said
he [Medina] would have to bring in the affidavit [attesting to five years of ex-
perience] and qualify himself before he [Fodor] would allow him in."
The credibility issues of some significance which emerge from the conflicting
testimony outlined above are (1) whether Kunkel denied, as Fodor claims, in the
presence of Medina, Fodor and Gibson, that Medina had ever performed any
plumbing work for Kunkel; (2) whether Fodor made a statement to Kunkel to the
effect that the latter would have to do something about Medina; and (3) whether
Fodor told Kunkel, in substance, that Medina could not be admitted to the Union
because of his lack of "proper qualifications and experience." The credibility ques-
tions will be discussed in the order stated.
The first issue is of some importance because Fodor's version of Kunkel's.relevant
remark would lend support to Fodor's claim, advanced in his testimony, that fol-
lowing Kunkel's statement that Medina -had never done any plumbing work while
in Kunkel's employ, he (Fodor) was satisfied that Medina was a warehouseman
and would thus have no interest in Medina's continued employment. However,
Fodor's version of Kunkel's remark is unconvincing. For one thing, Gibson's ac-
count of Kunkel's. statement does not quite support Fodor's testimony,- for Gibson
quotes Kunkel as saying, "He hasn't worked here as a plumber for two years."
Such a statement, incidentally, would be literally accurate, as would a remark by
Kunkel, as Medina claims, that Medina had not worked for Kunkel for 2 years.
MARK R . KUNKEL PLUMBING 1631
These two factually correct statements, upon close examination, convey substantially
the same meaning , for the context in which Kunkel's remark was made centered
upon a discussion of Medina's application to the Santa Monica local, in which, ac-
cording to the sense of the evidence, he had stated that he had performed plumbing
work for Kunkel for 2 years. In that setting, if Kunkel remarked, as Medina claims,
that the latter had not worked for Kunkel for 2 years, the implication would be
that he had not done plumbing work for 2 years, and it is that meaning which
takes the form of an express statement in Gibson's version. For another matter,
It is undisputed that as Fodor and Gibson were about to leave, Kunkel spoke to
.them about admitting Medina to membership in the Union (in fact, Fodor and
Gibson picture Kunkel as making a plea in that regard for Medina). This admitted
attempted intervention by Kunkel on Medina's behalf does not quite square with
Fodor's picture of Kunkel as flatly denying only a few moments before that
Medina had ever done any plumbing work for him, for the underlying implication
•of the plea was that Kunkel regarded Medina as qualified to perform plumbing
work, and that Medina needed membership in the Union to continue working for
Kunkel. In sum, I do not credit Fodor's claim that Kunkel made an outright
denial that Medina had done any plumbing work for him, but am persuaded, rather,
that Kunkel said, either expressly or by implication, that Medina had not worked
for him as a plumber for 2 years-a statement that was literally accurate.
On the issue whether Fodor told Kunkel that the latter would have to do some-
thing about Medina, Medina and Kunkel are in substantial accord that Fodor
made the statement in question, and Gibson supports Fodor's denial that he made
it. Implementing his denial, Fodor testified that he concluded that Medina was a
warehouseman, and that the Union thus had no interest in Medina's continued em-
ployment. Fodor's evident implication is that he would thus have had no reason
to make the statement imputed to him. However, as pointed out earlier, I do
not credit Fodor's claim that while he was talking to Medina, Kunkel interjected
a denial that Medina had ever done any plumbing work for Kunkel. On the
contrary, it may fairly be inferred that throughout his visit to the shop, Fodor
believed that Medina was employed by Kunkel in plumbing work. In that regard,
one should bear in mind not only that Fodor came to the shop possessed of in-
formation to that effect contained in Medina's application to the Santa Monica local
but that, as Fodor himself testified, Medina agreed, in response to an inquiry by
Fodor, that he had stated in the application that he "was employed by Kunkel
Plumbing as a plumber." I am unpersuaded that Fodor's belief was dissipated by
-the statement Kunkel interposed at that point, for what Kunkel said, either expressly
or by implication, as noted earlier, was that Medina had not worked for him as a
plumber for 2 years. In the setting in which the statement was made, the focus of
the remark was the length of time Medina had worked for Kunkel as a plumber,
rather than a denial that Medina had done any plumbing work for him. In the
context of all the circumstances, Kunkel's statement, it seems to me, would convey
the implication that Medina had been doing plumbing work for Kunkel, but for
.a shorter period than 2 years. In order words, I believe that at the time Fodor is
.alleged to have made a statement that Kunkel would have to do something about
Medina, there was some climate of understanding, in which Fodor shared, that
Medina had been performing plumbing work for Kunkel. Bearing that in mind,
as well as the fact that Fodor is admittedly "zealous" of the jurisdiction of his
organization, it is quite plausible that Fodor would tell Kunkel that the latter would
have to do something about Medina. That conclusion is bolstered by the evidence
of what Kunkel said to the Union's representatives as they were about to leave.
Whether one accepts Kunkel's version of what he said or that of either Gibson or
Fodor, it is evident that at that point Kunkel interceded for Medina, in effect seek-
ing his admission to membership in the Union. The underlying implication of the
intercession, in the context of the whole record, as indicated above, was that Medina
needed admission to membership in order to continue in Kunkel's employ. (One
may particularly note the testimony that Kunkel based his plea in part on the fact
that Medina has a family.) The timing and tenor of Kunkel's plea contribute weight
to the conclusion that Fodor did say something, shortly before Kunkel's intercession,
to jeopardize Medina's employment. Finally, as will shortly appear in greater
detail, Kunkel discharged Medina a few minutes after Gibson and Fodor left. Need-.
less to say, what Kunkel said to Medina after the departure of the Union's repre-
sentatives is not binding upon the Union, but that does not mean that one
must ignore the discharge and its timing as factors contributing corroborative weight
to testimony that sums up to a claim that Fodor demanded the discharge shortly
before it took place. In sum, I am persuaded that Fodor, in substance, told Kunkel
that the latter would have to do something about Medina, and credit Medina's
testimony in that regard.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remaining question, as respects Fodor's conduct at Kunkel's establishment, is
whether Fodor, in response to what was in effect a plea by Kunkel that Medina be
admitted to membership in the Union, told Kunkel, in substance, that Medina could
not be permitted to join the organization because he lacked the requisite qualifica-
tions and experience. In their testimony, Gibson and Fodor do not, in terms, deny
that Fodor made a statement to that effect, but both state, in substance, that Fodor's
response to Kunkel's plea was that Medina would have to follow "the route"
prescribed by the Union for all applicants, namely, that he would be required to
establish 5 years of experience by affidavit and qualify in an examination. I think it
likely that Fodor made some reference to the admission standards that Medina would
be required to meet if the latter wished to apply for membership. Kunkel conceded
as much, for he quoted Fodor as saying that Medina "would have to bring in the
affidavit and qualify himself before he [Fodor] would allow him in." But there is
no inevitable inconsistency between a description of "the route" Medina would be
required to follow if he wished to apply for membership, and an assertion that he
could not be allowed to join the organization because he lacked the requisite quali-
fications and experience. Fodor could have made both statements, but the im-
portant question is whether he made the latter.
The problem of resolving the question is complicated by the fact that I am unable
to say that the reliability of the testimony of any of the three witnesses involved is
without substantial blemish. On the one hand, as pointed out above, I do not credit
the denial by Gibson and Fodor that the latter told Kunkel that he would have to do
something about Medina. On the other hand, Kunkel's testimony on the subject
of what he told Fodor and Gibson concerning Medina's duties is marked by self-
contradiction, as is evident from the outline of Kunkel's relevant testimony given
above; and, as will appear, Kunkel's account of what he told Medina after the
departure of Gibson and Fodor is manifestly evasive. If a finding concerning the
issue under inquiry had to be made on the basis of Kunkel's applicable testimony
alone, without reference to other features of the record, one would be justified in
holding that because of the quality of his evidence, taken as a whole, his relevant
testimony is not of preponderant weight. However, viewed in the perspective of
the total record, the claim that Fodor told Kunkel that Medina could not be admitted
to membership strikes a credible note. Fodor had good reason to conclude, while
at the shop, that Medina had had something less than 5 years of experience in plumbing
work. The union card Medina showed Fodor reflected the fact that Medina was
a member of a Teamsters Union local while in the employ of Waterman Plumbing
Company, and this, it seems reasonable to conclude, would at least suggest to a person
of such seasoned union experience as Fodor that Medina, at least to a substantial
degree, had performed a type of work at the Waterman establishment usually as-
sociated with membership in the Teamsters Union. What is more, when Fodor's in-
terrogation of Medina centered on the latter's statement in his application to the
Santa Monica local that he had been employed by Kunkel "as a plumber,"' Kunkel
injected himself into the discussion with a statement that amounted to a denial
that Medina had worked for him in that capacity for 2 years, and it was at this
point that Fodor told Kunkel that he would have to do something about Medina-a
statement that was tantamount to a demand for Medina's discharge or, at least,
for the termination of his plumbing work. This, one may reasonably believe, led
Kunkel to intercede for Medina as Gibson and Fodor were about to leave. As
stated earlier, Kunkel did in fact terminate Medina's employment within a matter
of minutes after the departure of Gibson and Fodor. In sum, the sequence of
events plausibly supports a conclusion that Fodor said something to Kunkel at the
car which was tantamount to a rejection of Kunkel's plea, and that is essentially what
Kunkel's testimony spells out when he imputes a statement to Fodor that, he could
not allow Medina to join the Union because he lacked the requisite quali$cafions
and experience. I credit Kunkel's testimony in that regard.
Turning to the evidence bearing on Medina's discharge, it is undisputed that
Kunkel spoke to Medina a few moments after Gibson and Fodor left. According
to Medina, upon departure of the Union's representatives,' Kunkel reentered the
shop and told him, "Well, I guess this is all, I am going to have to let you go, because
if they find you here tomorrow they will pull my men out"; that he (Medina) re-
plied, "Well, I guess there is nothing we can do about it"; and that Kunkel remarked,
"No, there is nothing we can do about it," and went to his office.
Kunkel's testimony on the subject of his conversation with Medina after the de-
parture of the Union's representatives was palpably evasive. Interrogation of Kunkel
regarding one or another of the remarks imputed to him by Medina brought re-
sponses to the effect that he could not recall making the given statement in question.
MARK R. KUNKEL PLUMBING 1633
Asked at one point whether he recalled "that you told Medina that you were
letting him go," Kunkel replied, "No, I don't think I did, not in those words," stating,
also, "No, I don't remember that I told him. That was my trend of thought at the
time-." At another point, Kunkel testified that he was busy, that the telephone was
ringing in his office, and that he "wasn't there [with Medina] long enough to say six
words to him." Asked to state the "six words or less," Kunkel replied, "It is (tough)
for me to remember, to give a true answer."
The fact is that Medina's version of his conversation with Kunkel is substantially
corroborated by a written statement, signed by Kunkel, under oath, on January 21,
1957, and given by him to an investigator on the staff of the General Counsel.
Among other things, Kunkel said in the statement: "However, I did tell Medina I
was letting him go because Fodor would pull his men out and I knew he would if I
kept Medina on the job." 5 Conceding that the statement accurately sets forth what
he told the investigator, Kunkel testified: "That sounds like the conversation all
right as near as I can recall," and "I see here that I did tell Medina I was letting
him go because Fodor would pull his men out of the job and I knew he would if I
kept Medina on the job." However, but a few moments later, Kunkel testified: "I
don't remember ever telling him [Medina] I was going to let him go, I had in
mind his working as a plumber and that didn't mean I was going to let him go. He
still had a job there." Then, asked whether he remembered "telling Medina about
letting him go as a plumber," Kunkel replied, "No, I don't. I just took it for granted
he couldn't work in there when I was running a union shop as a plumber and work
with union men." In the light of the sworn statement Kunkel gave the investigator,
and the lack of forthrightness in Kunkel's testimony, I entertain no doubt that the
conversation between Kunkel and Medina substantially followed the course Medina
describes. In short, I credit Medina's version of the conversation as set forth above.
Immediately after his conversation with Kunkel, Medina left the shop and went
home. At that time, a day's pay was due him. He returned to the plant on the
following Friday, October 26; entered the hours for which payment was due him on
his timecard (as had been his custom in the past); presented the timecard to Kunkel's
wife, who usually prepares the paychecks for the employees; and Mrs. Kunkel made
out a check for the amount due Medina and gave it to him.
If it be asserted, as counsel for Kunkel intimated at the hearing, that Medina was
not discharged but voluntarily quit his employment, there is no merit to such a
claim. No special words of art are required to effect a discharge. It is evident
that Medina construed Kunkel's statements as a dismissal, and it is equally clear that,
prior to the hearing, Kunkel himself put such a construction on his conduct, as one
may plainly gather from the sworn statement he gave to the investigator. Medina
was fully justified in leaving the shop immediately after Kunkel told the employee
that he would have to let him go, "because if they find you here tomorrow they
will pull my men out." In the context of Kunkel's statements to Medina, particu-
larly as they followed hard upon Fodor's assertion that Kunkel would have to do
something about Medina, I can see no reason why Medina should have lingered on
in the shop for further evidence of Kunkel's intentions , especially as Kunkel told
Medina that "there is nothing we can do about it." 6 The sum of the matter is that
Kunkel discharged Medina by means of the statements he made to the employee
after the departure of Gibson and Fodor, for the statements were as much the
language of dismissal as though Kunkel had told Medina: "You are discharged."
C. Concluding findings
Fodor's statement to Kunkel that the latter would have to do something about
Medina ` was tantamount to a demand by the Union, expressed through its agent,
Fodor, that ' Kunkel discharge Medina or at least terminate his employment-,in
plumbing work. The demand conveys an implication that the Union would take
some action against Kunkel if he failed to comply. Clearly, that was the meaning
Kunkel gave to Fodor 's statement , for in discharging Medina, Kunkel told the
employee in effect that the Union would "pull" his employees out of the shop, or,
5 Kunkel said substantially the same thing in another sworn statement he gave the in-
vestigator on January 9, 1957.
e It may be noted that Kunkel testified that he "may have" made such a statement, but
that he "wouldn't .swear to it." As the finding previously made on the subject indicates,
I am persuaded that he did make a statement to that effect to Medina, as the latter
testified.
476321-58-vol. 119-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,in other words, call a strike at the establishment , if he continued to employ Medina.?
In short, the Union caused Kunkel to discharge Medina. Hence , the basic questions
.are (1 ) whether the discharge violated Section 8 (a) (3) of the Act, and (2)
whether the Union's conduct in causing the dismissal contravened Section 8 (b) (2)
of the statute.
The resolution of these issues is governed by principles laid down by the Supreme
Court in Radio Officers' Union v. N. L. R . B., 347 U. S. 17 , pp. 41-42. There the
Court pointed out:
This legislative history [of Section 8 (a) (3) of the Act] clearly indicates that
Congress intended to prevent utilization of union security agreements for any
purpose other than to compel payment of union dues and fees. Thus Congress
recognized the validity of unions ' concern about "free riders ," i. e., employees
who receive the benefits of union representation but are unwilling to contribute
their share of financial support to such union , and gave unions the power to
contract to meet that problem while withholding from unions the power to
cause the discharge of employees for any other reason. Thus an employer can
discharge an employee for nonmembership in a union if the employer has
entered a union security contract valid under the Act with such union, and
if the other requirements of the proviso [ contained in Section 8 (a) (3) of the
Act] are met .8 No other discrimination aimed at encouraging employees to
join, retain membership , or stay in good standing in a union is condoned.
Applying the foregoing principles , it is evident that Kunkel violated Section 8
(a) (3), and the Union Section 8 (b) (2), unless the union -shop provisions of the
-contract between the Union and the Council , to which previous reference has been
made, immunize the discharge from the prohibitory reach of the relevant sections
of the Act . In that regard , it may be noted that the General Counsel does not
challenge the legality of the union -security provisions of the agreement , and one
may assume for the purposes of this proceeding that these contractual terms are
lawful. One may also assume for such purposes , without affecting the results in
this proceeding , for reasons that will appear , that the type of work Medina was
performing at the time of his discharge was within the scope of the contract, and
that he had been engaged in such work for a period of more than 30 days preceding
his dismissal and the Union 's demand therefor.
As the Supreme Court indicated in the Radio Officers case, the Act permits the
utilization of union-security agreements only to compel the payment of periodic dues
.and initiation fees.9 Bearing that in mind, Medina 's discharge , and the Union's
conduct in causing it , were plainly not within the permissible reach of the contract.
In passing , it may be noted that Fodor made no reference to the terms of the
agreement while he was at the shop , nor did Kunkel say anything about his
contractual obligations when he discharged Medina. But putting these features of
In a statement , dated January 9, 1957 , given by Kunkel to the General Counsel's in-
vestigator , Kunkel quotes Fodor and Gibson as telling him "to let Medina go or they would
pull out the union men." In a second statement given by Kunkel to the investigator on
.January 21, 1957, Kunkel says that he does not "believe" that Fodor ( and presumably
Gibson) told him that , although stating, "I believe Fodor told me I'd have to do something
about 'Medina." What Kunkel says in the statements is, of course , not binding upon the
Union . Findings made above concerning Fodor 's demand , and the construction put upon
it, are based upon the testimony and the permissible inferences to be drawn therefrom.
8 Section 8 ( a) (3). of the Act provides , in part : "It shall be an unfair labor practice
for an employer . . . by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any labor
organization : Provided, That nothing in this Act, or in any other statute of the United
States, shall preclude an employer from making an agreement with a labor organiza-
tion . . . to require as a condition of employment membership therein on or after the
thirtieth day following the beginning of such employment or the effective date of such
agreement , whichever is the later. . . Section 8 (b) (2) of the Act makes it "an un-
fair labor practice for a labor organization or its agents . . . to cause or attempt to
cause an employer to discriminate against an employee in violation of subsection (a) (3)
or to discriminate against an employee with respect to whom membership in such organiza-
tion dias been denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of acquiring or re-
taining membership."'
See also, Twenty-First Annual Report of the National Labor Relations Board (1956),
and cases cited ; union Starch t Refining Co. v. N. L. R. B., 186 F. 2d 1008 ,: 1011-13
(C. A. 7), cert. denied 342 U. S. 815.
MARK R. KUNKEL PLUMBING 1635
The record aside, the important fact is that immediately prior to the discharge, Fodor
told Kunkel in effect that Medina was ineligible for membership in the Union and
would not be permitted to join it. These remarks were part of the setting in which
Fodor voiced his demand that Kunkel do something about Medina, and it is thus
evident that at the time the demand was made, Fodor regarded Medina as ineligible
for membership. That being the case, it is clear that Fodor's demand did not
stem from any purpose of using the contract as a means of removing a "free rider"
from his job. So far as the Union's responsibility for the discharge is concerned,
it is unnecessary to make an affirmative determination of the reason for Fodor's
demand; it is enough that the evidence justifies the conclusion that the demand was
unrelated to any legitimate use of a union-security agreement. Thus the Union
has no status to invoke the contract as a justification for its conduct in causing the
discharge; nor may Kunkel rely upon the agreement to justify the dismissal, for he
was well aware, at the time of the dismissal, that the Union regarded Medina as
ineligible for membership, and, thus, that Fodor's demand was not rooted in a
design "to compel payment of union dues and fees."
The sum of the matter is that: In discharging Medina, Kunkel was motivated
by the fact that Medina was not a member of the Union and had been declared
by the Union, through Fodor, to be ineligible for membership, and by a fear
of reprisal at the hands of the Union if he failed to terminate Medina's employment;
the contract affords neither Kunkel nor the Union immunity from the consequences
of their conduct; the natural tendency of the discharge was to encourage member-
ship in the Union, notwithstanding the fact that the organization regards Medina
as ineligible for membership; 10 by discharging Medina, Kunkel, individually and
,doing business as Mark R. Kunkel Plumbing, discriminated against Medina in
violation of Section 8 (a) (3) of the Act, and interfered with, restrained, and
,coerced employees in the exercise of rights guaranteed them by Section 7 of
:the Act, thereby violating Section 8 (a) (1) of the statute; and by causing the
discharge, the Union violated Section 8 (b) (2) of the Act, and restrained and
coerced employees in the exercise of the rights mentioned above, thereby violating
Section 8 (b) (1) (A) of the Act."
There remains for disposition the question of the effect to be given a letter,
dated February 13, 1957, which Kunkel wrote to Medina. The letter in material
substance offered to reemploy Medina as a warehouseman. It mentioned no rate
of pay. Medina did not reply to the letter, nor return to work as it requested,
because, as he testified in effect, he was not employed as a warehouseman at
the time of his discharge.
Medina was under no obligation to accept the offer. At the time of his discharge,
he was engaged in plumbing work, had been performing such duties for a
,considerable period prior to his dismissal, and was receiving a substantially higher
rate of pay than that which he had received while employed by Kunkel as a
warehouseman. The nub of the matter is that the letter may not be regarded as
an unconditional offer of reinstatement to the job Medina held at the time of
his discharge, nor to a substantially equivalent position; nor has the letter the effect
of tolling the period of back pay to which Medina is entitled. Accordingly, I
shall disregard the letter in formulating a recommended order below.I2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The respective activities of the Respondents, set forth in section III, above,
occurring in connection with the operations of Kunkel, 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 obstructing
commerce and the free flow of commerce.
10 See Radio Officers' Union v. N. L. R. B., supra, pp. 51-52.
n The absence of any evidence that the Union ever informed.Medina that lie would not
be admitted. to membership does not materially affect the results in this proceeding. This
is also true of the evidence pertaining to Medina's interview with the apprenticeship com-,
mittee. Medina's conversations with Porter and his discussion with the committee have
been outlined in findings made earlier, not because these matters significantly affect the
issues, but because they are part of the chronological background of events reflected in
the evidence..
12 In offering the letter, Kunkel's counsel stated in effect that it tended to negate the
allegation that Kunkel discriminated against Medina. I am unable to share counsel's
view. If anything, the offer to reemploy Medina as a Warehouseman signifies an intention
to continue to deny him employment in plumbing work or, in other words, to continue the
discriminatory treatment accorded him.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V.. THE REMEDY
It has been found that Kunkel has engaged in unfair labor practices violative
of Section 8 (a) (1) and (3) of the Act, and that the Union has engaged in
unfair labor practices in violation of Section 8 (b) (1) (A) and (b) (2) of
the said statute. In view of the findings, I shall recommend that the Respondents
cease and desist from their respective unfair labor practices and take certain
affirmative action designed to effectuate the policies of the Act.
Medina's discharge, and the Union's conduct in causing it, strike at the heart
of the rights guaranteed employees by the Act.13 These unfair labor practices
are closely related to other types of unfair labor practices abridging the rights
guaranteed employees by Section 7 of the Act, and prohibited by Section 8 (a) (1)
and 8 (b) (1) (A) of the statute. In view of the nature of the unfair labor
practices found above, there is reasonable ground to anticipate that each of the
Respondents will infringe upon other rights guaranteed employees in the future
unless appropriately restrained. Therefore, in order to make effective the inter-
dependent guaranties of Section 7, I shall recommend an order below which will
in effect require each Respondent to refrain in the future from abridging any of
the rights guaranteed employees by said Section 7.14
As it has been found that Kunkel discharged Medina on October 23, 1956, in
violation of Section 8 (a) (3) of the Act, and that the Union caused Kunkel so to
discharge Medina, thereby violating Section 8 (b) (2) of the Act, I shall recommend
that Kunkel offer Medina immediate and full reinstatement to his former or a sub-
stantially equivalent position,15 without prejudice to his seniority and other rights
and privileges, and that Kunkel and the Union jointly and severally make Medina
whole for any loss of pay he may have suffered by reason of Kunkel's discrimination
against him, by payment to him of a sum of money equal to the amount of wages
he would have earned, but for his discharge, between October 23, 1956, and the date
of a proper offer of reinstatement to him as aforesaid. I shall also recommend that:
Loss of pay be computed on the basis of each separate calendar quarter or portion
thereof during the period from the date of the discharge to the date of a proper offer
of reinstatement; the quarterly period begin with the respective first days of January,
April, July, and October; that loss of pay be determined by deducting from a sum
equal to that which Medina normally would have earned but for the discrimination
against him, in each such quarter or portion thereof, his net earnings,is if any, in
any other employment during that period; earnings in one quarter have no effect
upon the back-pay liability for any other quarter; and Kunkel preserve and make
available to the Board or its agents upon request, for examination and copying, all
payroll records, social security payment records, timecards, personnel records and
reports, and all other records necessary or appropriate to an analysis of the amounts
of back pay due and the rights of employment under the terms of any order the Board
may make requiring Medina's reinstatement and the payment of back wages to him.
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Union is, and has been at all times material to this proceeding,
a labor organization within the meaning of Section 2 (5) of the Act.
2.-'Mark R. Kunkel, individually and doing business as Mark R. Kunkel Plumbing,
is, and at all times material to this proceeding has been, an employer within the
meaning of Section 2 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of. Demesio
V. Medina, as found above, Kunkel, individually and doing business as 'Mark R.
Kunkel Plumbing, has engaged in unfair labor practices within the meaning. of
Section 8 (a) (3) of the Act.
11 See N. L. R. B. V. Entwistle Mfg. Co., 120'F. 2d 532 (C. A. 4).
1* May Department Stores v. N. L. R. B., 326 U. S. 376; Bethlehem Steel Company v.
N. L. R. B., 120 F. 2d 641 (C. A., D. C.).
16 In accordance with the Board's past interpretation, the expression "former or a sub-
stantially equivalent position" is intended to mean "former position wherever possible,
but if such position is no longer in existence, then to a substantially equivalent position."
See The Chase National Bank of the City of New York , Ban Juan, Puerto Rico, Branch,
65 NLRB 827.
16 See Crossett Lumber Company, 8 NLRB 440 , for the applicable construction of "net
earnings."
MARK R. KUNKEL PLUMBING 1637
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act, as found above, Kunkel, individually
and doing business as Mark R. Kunkel Plumbing, has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
5. By causing Kunkel, individually and doing business as Mark R. Kunkel Plumb-
ing, to discriminate in regard to the hire and tenure of employment of Demesio V.
Medina in violation of Section 8 (a) (3) of the Act, as found above, the Respondent
Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act, as found above, the Respondent Union has engaged in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
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, I hereby notify my employees that:
I WILL NOT encourage membership by my employees in Local Union #761
of the United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, or any other
labor organization, or discourage membership in any labor organization, by
discriminatorily discharging employees or in any other manner discriminating
against them in regard to their hire, tenure of employment, or any term or
condition of employment, except as authorized by Section 8 (a) (3) of the
National Labor Relations Act.
I WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any or all of
such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
I WILL offer to Demesio V. Medina immediate and full reinstatement to his
former, or a substantially equivalent, position without prejudice to his seniority
and other rights and privileges.
I WILL jointly and severally with Local Union #761 of the United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, make Demesio V. Medina whole
for any loss of pay he suffered as a result of discrimination against him.
All of my employees are free to become, remain, or refrain from becoming,
members of any labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the National
Labor Relations Act.
Dated-------------------
MARK R. KUNKEL, INDIVIDUALLY AND DOING
BUSINESS AS MARK R. KUNKEL PLUMBING,
Employer.
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO MEMBERS OF THIS UNION AND EMPLOYEES OF MARK R. KUNKEL, AN
INDIVIDUAL DOING BUSINESS AS MARK.R. KUNKEL PLUMBING
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 give notice that:
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause, or attempt to cause, Mark R. Kunkel, individually or
doing business as Mark R. Kunkel Plumbing, or any other employer, except
in accordance with Section 8 (a) (3) of the National Labor Relations Act, to^
discharge employees or in any other manner discriminate against them in regard
to their hire, tenure of employment, or any term or condition of employment.
WE WILL NOT in any other manner restrain or coerce employees of Mark R.
Kunkel, individually or doing business as Mark R. Kunkel Plumbing, or of-
any other employer, in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through represen-
tatives of their own choosing, to engage in concerted activities for the purpose-
of collective bargaining or other mutual aid or protection, and to refrain from
any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the National'
Labor Relations Act.
WE WILL jointly and severally with Mark R. Kunkel, individually and doing
business as Mark R. Kunkel Plumbing, make Demesio V. Medina whole for
any loss of pay he suffered as a result of discrimination against him.
WE HAVE no objection to the employment by Mark R. Kunkel, individually'
or doing business as Mark R. Kunkel Plumbing, of the said Demesio V. Medina,.
and request Mark R. Kunkel, individually and doing business as Mark R.
Kunkel Plumbing, to offer Demesio V. Medina immediate and full reinstate-
ment to his former, or a substantially equivalent, position, without prejudice
to his seniority and other rights and privileges.
LOCAL UNION #761 OF THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, 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.
Seafarers' International Union of North America, Atlantic and
Gulf District , AFL-CIO and Salt Dome Production Company
Seafarers' International Union of North America, Atlantic and
Gulf District , AFL-CIO and Gulf Oil Corporation 1
Seafarers' International Union of North America, Atlantic and
Gulf District , AFL-CIO and Todd Shipyards Corporation.
Cases Nos. 15-CC-59, 15-CC-60, and 15-CC-61. February 14,
1958
DECISION AND ORDER
On April 3, 1957, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceedings, finding that the-
Respondent had not engaged in any unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Charging Parties, Salt Dome
Production Company and Gulf Oil Corporation, filed exceptions to the
Intermediate Report and supporting briefs.
1 The name of this Charging Party appears as amended at the hearing.
119 NLRB No. 198.