Miami Valley Carpenters' District Council of Dayton, Ohio.

National Labor Relations Board - Board Decisions

Nov 1, 1960

129 N.L.R.B. 517 (N.L.R.B. 1960)

MIAMI VALLEY CARPENTERS' DISTRICT COUNCIL, ETC . 517
for the over-the-road drivers and coordinates deliveries to the
branches. He assigns routes to the over-the-road drivers and directs
the loading and unloading of the trucks. While he does not have the
authority to hire or discharge employees he does have the authority
to discipline and adjust grievances of employees. Accordingly, upon
the record as a whole, we find that Hoffman is a supervisor within
the meaning of the Act, and we shall therefore exclude him from
the unit.
Accordingly, we find that the following employees constitute a unit
appropriate for purposes of collective bargaining within the meaning
of the Section 9 (b) of the Act :
All of the Employer's production, maintenance, and distribution
employees in Charlotte, Asheville, Fayetteville, and Salisbury, North
Carolina; and Greenville, Columbia, Charleston, and Florence, South
Carolina, excluding office clerical employees, branch managers, the
dispatcher, and all other supervisors as defined in the Act.
Although the unit found appropriate is broader than that initially
sought by the Petitioner, the Petitioner has indicated its ability to
make a showing in such a unit. Accordingly, we instruct the Regional
Director not to proceed with the election herein directed until he shall
have first determined that the Petitioner has made an adequate and
timely showing of interest among the employees in the appropriate
unit.,
[Text of Direction of Election omitted from publication.]
4 Foremost Dairies, Inc., 118 NLRB 1424, 1428, footnote 7.
Miami Valley Carpenters ' District Council of Dayton, Ohio,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO [B. G. Danis Company , Inc.] and C. H. Chester.
Case No. 9-CB-83Pd. November 1, 1960
DECISION AND ORDER
On April 4, 1960, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices 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 Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
129 NLRB No. 65.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermedi-
ate Report, the exceptions, briefs, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.'
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 Re-
lations Board hereby orders that :
Respondent, Miami Valley Carpenters' District Council of Dayton,
Ohio, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, its officers, representatives, and agents shall :
1. Cease and desist from :
(a) Causing or attempting to cause B. G. Danis Company, Inc.,,
its officers, agents, successors, or assigns, to discriminate against its.
employees in violation of Section 8(a) (3) of the Act.
(b) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, 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, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which we find will effectu-
ate the policies of the Act :
(a) Immediately write the B. G. Danis Company, Inc., and send a
copy to Cabble H. Chester, 920 Superior Avenue, Dayton, Ohio, stat-
ing that it withdraws all objections to the employment of and to the
working of Cabble H. Chester with the same rights and privileges
B. G. Danis Company, Inc., grants to all its employees.
(b) Make whole Cabble H. Chester for any loss of pay he may
have suffered by reason of the Respondent's discrimination against
him in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Post in conspicuous places in Respondent District Council's
office or union hall in Dayton, Ohio, where notices to members are
customarily posted, copies of the notice attached hereto marked
"Appendix A." 2 Copies of said notice, to be furnished by the Re-
1 We do not adopt the Trial Examiner 's finding that the Respondent ' s business agent
threatened Charging Party Chester with bodily harm, thereby violating Section
8(b) (1) (A). We note that when Chester asked if he would be thrown bodily off the job,
the business agent did not reply in the affirmative , but answered only that Chester just
would not work. In our view, this response Is too ambiguous to form the basis of a
finding that Respondent threatened Chester with bodily harm.
2In 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."
MIAMI VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 519'
gional Director for the Ninth Region, shall, after being duly signed by
an official representative of the Respondent, be posted by it immedi-
ately upon receipt thereof, and maintained by it for a period of 60
consecutive days thereafter, in conspicuous places including all places
where notices to members of Respondent District Council and the con-
stituent locals thereof are customarily posted. Reasonable steps shall
be taken by said Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
APPENDIX A
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT cause or attempt to cause B. G. Danis Company,
Inc., or any other employer within our territorial jurisdiction, to,
discriminate against employees or prospective employees in vio-
lation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees;
or prospective employees of B. G. Danis Company, Inc., or any
other employer within our territorial jurisdiction, 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 by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole Cabble H. Chester for any loss of pay he,
may have suffered as a result of our discriminatory action against
him.
WE WILL notify, in writing, B. G. Danis Company, Inc., that we.
have no objection to the hiring or employment of Cabble H.
Chester by that Company.
MIAMI VALLEY CARPENTER' DISTRICT COUN-
CIL OF DAYTON, OHIO, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS 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-
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Alba B. Martin,
the duly designated Trial Examiner, in Dayton, Ohio, on January 19 and 20, 1960,
on complaint of the General Counsel and answer of Miami Valley Carpenters' Dis-
trict Council of Dayton, Ohio, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, the Respondent, referred to herein as Respondent and Respond-
ent District Council. The issues litigated were whether Respondent caused or at-
tempted to cause the employer of Cabble H. Chester to discriminate against Chester
in violation of Section 8(a)(3), and whether Respondent restrained and coerced
Chester, in violation of Section 8(b) (2) and 8(b) (1) (A) of the Act. At the conclu-
sion of the testimony the General Counsel and Respondent made short oral summa-
tions. Respondent filed a brief, which has been carefully considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
B. G. Danis Company, Inc., herein called the Danis Company, is an Ohio corpora-
tion engaged in a general construction business, with its principal office and place of
business at Dayton, Ohio. During the 12 months prior to issuance of the complaint,
which is a representative period, the Danis Company had an indirect outflow of its
products and services in interstate commerce of a value in excess of $50,000, and
during the same period it had a direct inflow of materials and equipment in inter-
state commerce, of a value in excess of $100,000. The parties stipulated, and I
find, that Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent District Council and Local Union No. 104, affiliated with Respond-
ent District Council, are each labor organizations as defined in Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Causing the discriminatidn against Chester
Cabble H. Chester, a carpenter, was hired as a new employee by B. G. Danis
'Company, Inc., for temporary work consisting of installing, with other carpenters,
some science equipment cabinets in one wing of a new school building on what was
known as the Nettie Lee Roth School job. Chester began working June 15, 1959,
and, but for the termination of his employment on June 18, discussed herein, his em-
ployment would have continued through June 23, when the special job of installing
the cabinets was completed and the several other carpenters performing that special
work were laid off or transferred to other assignments.
Chester was employed by Danis' superintendent on the job, Guy Markland, for
whom Chester had worked some 6 years before and who was, to Chester's knowl-
edge a member of Local Union 104. After all arrangements had been made and
Chester was actually on the job ready to go to work, according to Chester's credible
and credited testimony, Chester informed Markland and also the company foreman
and union steward on the job, Loyal Barger, that he had had trouble in Cincinnati,
that Local Union 1807, with which he was then affiliated, had refused to take his
dues which he had tendered, and that he had a check it had returned to prove it.
Commenting "you certainly put me in a jam" Markland nevertheless permitted Ches-
ter to go to work. Markland suggested to Barger that "you had better call the
Union."
Then in the presence of Markland (Chester was out of the room) Barger made a
telephone call and asked for William Weber, business agent of Respondent. Mark-
land heard Barger ask for Weber but left and did not overhear the conversation.
Barger did not reach Weber but did inform another business representative of Re-
spondent that there was a man on his job whose dues were in arrears. Barger told
'Chester in substance that a representative of the Union would be out to the job.
Although there is testimony to the contrary, I credit Barger's testimony that at
the time Chester was hired Barger was serving as both foreman and steward. Bar-
ger testified that Markland put him in charge of installing the science equipment
cabinets before any of the three carpenters who assisted him on that work were
assigned to that work-Chester, Lee Webber, and Thomas McQuain.
MIAMI VALLEY CARPENTERS' DISTRICT COUNCIL, ETC . 521
Although in substance Respondent contended that Barger was not, I find that
Barger was a supervisor within the meaning of the Act. He was in charge of install-
ing the science equipment in about "a dozen rooms" in one wing of the four-level,
five-wing, school building. His immediate supervisor was Superintendent Markland,
who was directly or indirectly in charge of the entire project. At one point in his
testimony Barger volunteered, "there was days when Markland never got around up
on the floor where I would be or back in the corridor where I would be working."
As foreman his duties were to assign work to the carpenters and see that they did it
properly. He showed them what to do and how to do it, where and how the cabinets
were to be placed. He laid out the work, and kept coordination among the men.
On the entire record I find and hold that in the interest of the Danis Company, Bar-
ger had authority to assign and responsibility to direct the three carpenters under
him and that the exercise of such authority required the use of independent judgment.
Later that day, June 15, Markland informed his superior, Vice President and
General Manager Charles W. Danis, that Markland had hired a new carpenter who
had gone to work that morning and that Markland had learned after the man had
been at work that he was not a union member. After hearing what Markland knew
about Chester's suspension from membership, Danis instructed Markland that under
no circumstances except lack of work was Chester to be laid off this job. Danis
testified that by these instructions he intended to be protecting Chester's job.
During the evening of Tuesday, June 16, Thomas McQuain, a carpenter, applied
to Superintendent Markland for a job and was hired. McQuain had earlier recom-
mended Chester for a job and Markland had hired him. In the Tuesday conversa-
tion Markland told McQuain, according to the latter's credited testimony, that "I
got in a jam over Chester . . . he doesn't have any card and he is getting me in a
jam . . . if I would have known he didn't have a card I wouldn't have hired him."
On Tuesday or Wednesday, June 16 or 17, Foreman Barger called Business
Representative William Weber and told him that Chester was working on his job,
that his dues were in arrears and that Chester had said he had a fine against him in
Cincinnati.
On Thursday, June 18, at about lunchtime William Weber went to the job and
asked Markland, according to the latter's credited testimony, where Chester was
working, and then went in the direction indicated. When he got to the wing of the
large building where Barger and his group of three other carpenters were working he
asked Barger where Chester was and Barger told him. When Weber found Chester
he talked with him in the presence of some other carpenters. Weber asked Chester
for his working card and when Weber saw from the card that Chester was over 3
months in arrears in his dues, Weber told him that he would have to get his dues
paid up and that he would have to "go in and get fixed up " Chester told Weber that
he had sent in his dues, which had been refused. In substance Chester told Weber
that he did not see how he could get fixed up because he had no intention of paying
the fine which had been levied against him and his Local would not accept his dues
until he first paid the fine. Weber told Chester he would have to pay his dues by
the next morning if he wanted to work the next day. At about this point in the
conversation Barger joined the group or the group joined Barger. Weber told
Barger that he could not serve as both foreman and steward. Weber asked Barger
to get another carpenter who was working on the job, Allen Himes, which Barger
did, and Weber then appointed Himes as union steward. Then, according to the
credited testimony of Chester and Richard Neutzling, a neutral in the dispute who
happened to be there, Weber instructed Himes and Barger that if Chester's dues
were not paid up by the next day Chester was not to go to work.' When Chester
asked Weber if that meant that he would be bodily thrown off the job Weber replied
that Chester just would not work. Chester told Weber that he did not want to have
any trouble with him.
As Weber's instructions were given in front of him and to him Foreman Barger,
fully understanding that Respondent, through its business representative, was dictating
the conditions under which Chester would be permitted to remain on the job, held
his silence . Whatever duty he had as foreman in the circumstances he did not
perform. He never reported this matter to Superintendent Markland or Vice
1 Chester testified that Weber told Himes, "Chester does not work tomorrow unless he
has a paid-up card. . . . You understand this?" Himes replied, "Yes." Then Weber
said, "Did you hear that, Loyal9" Barger replied, "Yes." Neutzling testified that after
an argument between Weber and Chester about Chester's back dues and his fine, and
"inter-union law," which took place in front of Barger, Weber told Barger and Himes that
Chester "couldn 't work on the job . . . if he didn't have a paid-up card "
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President and General Manager Danis , or any other superior officer in the Danis
Company.
On his way out of the building Business Representative Weber took Himes down
to Superintendent Markland and told the latter that now Himes was the union
steward on the job. In Markland's presence , as admitted by Markland on cross-
examination , Weber instructed Himes that if Chester's dues were not paid up the
following morning Himes should call Weber.
Shortly before the close of work that afternoon Chester went to Superintendent
Markland and told him that he was quitting in order to avoid causing any trouble.
They discussed how and when Chester wanted to be paid.
After work that afternoon Markland came upon Chester and McQuain at their
car getting ready to leave the property. Chester thanked Markland for the job, told
him he was sorry to give him any trouble, and added that he thought it best to get
off the job because he did not want to cause any more trouble. According to
Chester's and McQuain's credited testimony Markland said in substance that if he
had known Chester did not have a paid-up working card he certainly would not
have hired him.
Knowing full well that Chester was being caused to leave the job by the Union,
whatever duties or obligations Markland had in the circumstances he did not perform.
On the entire record Markland's testimony that he did not suspect why Chester was
leaving the job is not credited.
As Chester was leaving his place of work that afternoon, Foreman Barger saw
Chester carrying his toolbox out. Although to the initiated carrying one's toolbox
out generally signified that the carpenter was leaving the job for good, Barger said
nothing to Chester about his leaving and did nothing about it. This was understand-
able because, as he well knew, by calling the union hall Monday and on Wednesday
calling Weber, Barger had initiated the chain of events which resulted in Chester's
being forced off the job.
At a union meeting the following night, June 19, 1959, Business Representative
William Weber told one James Napier, according to the credited testimony of Napier
and Samuel Thomas who overheard the conversation, in substance that Weber had
to run Chester off a job, that if Chester had done what he should have done, namely
pay his fine, he could have worked, but as it was now the could not work in this
locality for at least 5 months?
The fine referred to was a fine of $100 levied against Chester by another District
'Council than Respondent, by the Ohio Valley District Council, with headquarters in
Cincinnati, Ohio, for failure to appear and stand trial before a trial board of that
District Council upon union charges not related to the nonpayment of dues or
initiation fees involving alleged violations of the United Brotherhood's constitution
and laws. Chester had not paid this fine nor the $50 of it required to be paid on
account to qualify Chester to perfect an appeal to the general president of the United
Brotherhood of Carpenters and Joiners of America, the parent body of both District
Councils and Chester's Local to which payment was to be made under the constitu-
tion and laws of the parent body. Chester's dues were paid through February 1959.
When, on about May 26, 1959, Chester had tendered 4 months' dues by check,
which was a method of paying dues he had frequently used without refusal, his
uncashed check and uncredited dues book were promptly returned by the Local
Union. In addition to the fine, the trial board had recommended, and the District
'Council had concurred, that Chester be expelled from the United Brotherhood.
Superintendent Markland, Foreman Barger, and Business Representative Weber
were all members of Local Union 104, which was one of the constituent local unions
of the Respondent District Council. The general laws of the United Brotherhood,
which governed them and the Respondent District Council, provided, inter alia, that
"members who . become foremen, must comply with Union rules and hire none
but members of the United Brotherhood." The bylaws, trade, and working rules
of the Respondent District Council, provided, inter alia, that "SEC. 104. No member
will be permitted to work with non-Union carpenters"; "SEC. 38. All foremen and
sub-foremen must be members of the United Brotherhood and be in possession of
current working cards and paid up. All foremen shall comply with the By-Laws and
Working Rules of the Miami Valley Carpenters' District Council"; "SEC. 40. Super-
intendents must give all instructions to the Carpenter Foreman and not to the men";
"SEC. 43. Any foreman found guilty of breaking any rule of the District Council
2 Thomas' testimony shows this period of time to have been 5 months, which is obvi-
ously the correct figure. The typographical error reading "minutes" in Napier's testi-
mony is hereby corrected to read "months."
MIAMI VALLEY CARPENTERS' DISTRICT COUNCIL, ETC . 523
or causing men to do so under his direction, shall be fined not less than ten ($10.00)
dollars"; "Sac. 44. All foremen shall cooperate with the steward and the Business
Representative to make the job strictly Union in every detail; failing to do so said
foreman shall be fined not less than ten ($10.00) dollars."
B. Respondent's contentions and my conclusions
On this record there is no doubt whatsoever that the proximate cause of Chester's
leaving the job for good on June 18 and his nonreturn to it on June 19 was Business
Representative Weber's instructions to him, Foreman Barger and Steward Himes
shortly after lunchtime on June 18, and the failure of either Barger or Markland
to lift a hand to save Chester's job. But for Weber's statements Chester would have
continued working on the job through the following Tuesday, June 23. Markland
testified he was doing good work. No other reason for his leaving was advanced
or proven.
That the action of Weber and the nonaction of Barger and Markland were in
compliance with their union's rules and laws did not excuse them from obeying the
Federal law, whether occurring out of willfulness or ignorance. As has been seen,
considered independently or together, the general laws of the parent body, the
United Brotherhood, and the bylaws, trade, and working rules of Respondent District
Council, imposed closed-shop conditions not permitted under the amended Act.
The record established that Weber's action and Barger's and Markland's inaction,
were inspired by their Union's rules and laws. Admitting several times-to Chester,
to McQuain, and on June 18 to them together-that he was "in a jam" over Chester
and would not have hired him in the first place if he had then known Chester's dues
were not paid up, Markland took no action to assert his and his Company's right
`_o hire and fire on this job and to protect Chester's job, because to do so would make
nim subject to a fine for noncompliance with union rules and subject to censure
for relaxing the closed-shop conditions demanded by the union rules. For the same
reason Foreman Barger, knowing that Chester owed a fine and was in arrears in his
dues, took no action to protect Chester's job?
Not only did Markland and Barger not protect Chester's job, but they both were
instrumental in calling Chester's delinquency to the attention of the Respondent-
Markland suggesting to Barger on June 15 that he call the Union, and Barger twice
doing so, once to the Respondent's office and the second time to Business Representa-
tive Weber personally. In doing so Markland and Barger were acting in their
capacities as union members and, in the case of Barger, as the union steward on
the job.
As Markland and Barger were also agents of the Danis Company, by their action
in calling Chester's delinquency to the attention of the Union and their inaction
in failing to protect Chester's job, the Danis Company was associated with the exclu-
sion of Chester from the job.
After Weber gave him to understand in positive language that he was not going
to work on that job the next day unless his dues were paid up (which Weber knew
involved his first paying his fine) Chester was justified in leaving the job and in
refraining from making any effort to force his right to work on the job the following
day, knowing that neither the foreman nor the superintendent would protect him
or his job Cf. Fred P. Weissman Company, et al, 69 NLRB 1002, 1004, enfd 170
F. 2d 952 (C.A. 6), cert. denied 336 U.S. 972. Particularly was this true after
Weber's failure to deny, when asked by Chester, that Chester would be bodily thrown
off the job-which, under all the circumstances of this case, amounted to an implied
threat of bodily harm if Chester showed up on the job the next day with his dues
unpaid.
It is well established that an employer is under a duty to insure that its right to
hire, discharge, or transfer is not delegated to any antiunion or prounion group of
employees. Accordingly the Board has frequently held with judicial approval that
an employer violates Section 8(a)(3) of the Act when he knowingly permits the
exclusion of an employee from the plant by any union or antiunion group. Longview
Furniture Company, 100 NLRB 301, 340, and cases cited on page 340. An employer
s Weber admitted that in August 1959 he tried to enforce the Union's rules and laws
against a company with which the Union had no contrnet-which company erected
bleachers, backstops, and folding partitions in the gymnasium of this school building.
Uncontradicted testimony showed that Barger also tried to enforce union rules and laws.
In August, Barger was a union member but the record is silent as to whether he was then
a foreman or a steward
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who takes no action to prevent the ejection of his employees by members of a rival
union, is himself responsible for the ejection, such ejection being tantamount to a
discharge. Hudson Motor Car Company, 34 NLRB 815, 826, enfd. 128 F. 2d 528
(C.A. 6).
I find that effective the following morning, June 19, 1959, Chester, no longer
in good standing in the United Brotherhood, was excluded from the job in an effort
by Respondent District Council to enforce closed-shop conditions on the job. The
Board would find that by taking no action to prevent Chester's exclusion from the
job-which was not required by any union-shop contract which applied to Chester,
since he had worked only 4 days-the Danis Company discriminatorily discharged
Chester in violation of Section 8(a) (3) of the Act. That there was a union-shop
clause in existence would not be a defense for the further reason that the Danis
Company had knowledge through its foreman, Barger, and its superintendent,
Markland, that Chester's dues had been tendered and that, therefore, Chester's
membership had been terminated for reasons other than his nontender of the dues.
Respondent contended Chester quit and, alternatively, that Chester became in
arrears on May 1, 1959, and that under the contract Respondent could properly ask
for his removal from his job. Section 44A of the United Brotherhood's general
laws provided that ". . . a member does not fall in arrears until the end of the
month in which the member owes a sum equal to three months' dues." Chester's
dues were paid for February 1959. On or about May 26 he mailed a check for 4
months' dues which I find was received by his local union prior to May 31. The
check was returned to him uncashed, in an envelope postmarked June 1, 1959. On
this evidence I conclude that Chester would not have become in arrears until the end
of May 31, and that before that Chester had tendered his dues for March, April,
May, and June.
Respondent contended in substance that Chester was not a new hire on June 15,
1959, when he went to work, but was an old employee of the Danis Company who
was "called back to work" on that date; that, under the union-shop clause 4 of the
then-existing contract he was required, as an "employee" who was a member of the
Union on the effective date of the contract, May 26, 1958, to remain a member of
the Union as a condition of employment. The record did not establish that Chester
was an old employee who was being recalled. Markland did not call Chester
to come and fill the temporary job. Learning of the vacancy, Chester called Mark-
land and asked foi the job. Markland called McQuain, who was unavailable but
who recommended Chester. Even then Markland did not telephone Chester and
offer to recall him. Instead, Chester phoned Markland, who hired him, I find on
the entire record, as a new employee. I reach this conclusion notwithstanding that
when he reported for work on June 15, Chester was not asked to sign any "papers,
records or anything" or any "withholding data"-for reasons which were not ex-
plained in the record. In addition to the above, I credit Chester's testimony that
prior to his temporary employment on this school construction job Chester was not
a "regular employee" of the Danis Company.
By bringing direct pressure upon his foreman not to permit Chester to work the
following day unless his dues were paid up, Respondent through its agent, Weber,
engaged in action which was "tantamount to a request to discriminate" with respect
to the terms of Chester's employment, which action was "reasonably calculated to
bring about that result." Such conduct necessarily encouraged union membership.
It follows and I hold, that by causing and attempting to cause Chester's discharge
the Respondent District Council violated Section 8(b)(2) of the Act. I find further
that, by Weber's conduct in the presence of Chester and other employees, Respondent
threatened bodily harm and economic reprisal and thereby restrained and coerced
employees in the exercise of their rights in violation of Section 8(b)(1)(A) of the
Act. See United Brotherhood of Carpenters and Joiners of America, AFL-CIO;
et al. (Endicott Church Furniture, Inc.), 125 NLRB 853, and cases cited in footnotes
8 and 9 thereof.
The union-shop clause read as follows :
All employees who are members of the Union on the effective date of this agree-
ment shall be required to remain members of the Union as a condition of employ-
ment daring the term of this agreement. New employees shall be required to become
and remain members of the Union as a condition of employment from and after the
31st day following the dates of their employment or the effective date of this agree-
ment whichever is later.
During the first thirty (30) days after his original date of employment with the
employer, a new employee shall be on a trial basis and may be discharges [sic] at
the discretion of the employer.
MIAMI VALLEY CARPENTERS' DISTRICT COUNCIL, ETC. 525
The General Counsel contended in substance that the record proved the existence
of an illegal exclusive hiring-hall arrangement or practice between the Danis Com-
pany and the Respondent District Council with respect to the special job for which
Chester was hired . In addition to the foreman only three carpenters worked on that
special job . The circumstances involving Chester, considered above, reveal dis-
crimination against him after he was hired and assigned work by the Danis Com-
pany. On his own initiative and without first clearing with the Union , Markland
hired McQuain even though the latter had been suspended from membership by
the District Council. His case was on appeal to the general president of the United
Brotherhood and in the meantime he was allowed to, and evidently did, pay dues
to his local union. The third carpenter, Lee Webber, was transferred to the special
job from another company job, and the record is silent as to the circumstances of
his initial employment and as to whether he was a member of the United Brother-
hood . In these circumstances and on the entire record I do not find the proven
existence of an illegal exclusive hiring-hall arrangement or practice involving the
special job.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Danis Company 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.
V. THE REMEDY
Having found that Respondent District Council has engaged in the unfair labor
practices set forth above, I recommend that it cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the Act.
Respondent District Council having caused and attempted to cause the discharge
of Chester from the Nettie Lee Roth School job, it is recommended that Respondent
District Council notify the Danis Company and Chester in writing that it has no ob-
jection to the future employment of Chester by the Danis Company in a position
substantially equivalent to the one he held on the Nettie Lee Roth School job, without
prejudice to his seniority or other rights and privileges. It is further recommended
that Respondent District Council make Chester whole for any loss of pay he
may have suffered by reason of its discrimination against him , by paying to him an
amount equal to that which he would have earned, but for the discrimination against
him, from June 18 through June 23, 1959, when the special job was completed. It is
also recommended that Respondent District Council make Chester whole for any
loss of other rights and incidents of the employment relationship he may have
suffered by reason of the Respondent 's unlawful conduct . Pen and Pencil Workers
Union, Local 19593, AFL (Parker Pen Company), 91 NLRB 883.
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. B. G. Danis Company, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Miami Valley Carpenters' District Council of Dayton, Ohio, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By attempting to cause and by causing B. G. Danis Company, Inc., to dis-
criminate against Cabble H. Chester in the hire and tenure of his employment,
Respondent District Council has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) and Section 8(b)(1)(A) of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act , Respondent District Council has engaged in and is
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.]