Millwright Local Union No. 1311

National Labor Relations Board - Board Decisions

Oct 28, 1971

193 N.L.R.B. 995 (N.L.R.B. 1971)

MILLWRIGHT LOCAL UNION NO. 1311 995
Millwright Local Union No. 1311 of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (American Riggers , Inc.) and Gordon L.
Measel . Case 9-CB-1866
October 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 26, 1971, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, and on March 31, 1971, an Erratum,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations i of the
Trial Examiner as modified below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Millwright Local
Union No. 1311 of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order as so modified.
1. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order.
2. Substitute attached Appendix for the Trial
Examiner's Appendix.
MEMBER JENKINS, dissenting in part:
I dissent from my colleagues' modification of the
remedy recommended by the Trial Examiner. They
conclude that as Respondent notified American by
letter dated September 24, 1970, that it had no
objection to the employment of Measel, and as it
appears that a copy of this letter was sent to Measel,
Respondent is no longer obligated to make whole
Measel for backpay lost 5 days after receipt of the
September 24 letter. I disagree.
We are finding that Respondent continued its
violation of Section 8(b)(1)(A) long after September
24, when, on November 11, it subjected Measel to
unlawful coercive pressures in order to compel him to
withdraw the unfair labor practice charge he had filed
with the Board. At that time Measel was told that the
only way that he could become a member was by
signing an affidavit stating he was withdrawing the
charge and admitting that the charge was untrue.
Indeed, it was this very lack of union membership
which had cost him his job with American in the first
place, and on November 11, Respondent was still
holding this lack of membership over his head as a
club to force him to withdraw the charges he had filed
with the Board. I am convinced that, on November
11, Measel received no comfort from Respondent's
earlier letter to American assuring American that
Respondent had no objection to his employment,
when, at that very time, the Respondent was still
threatening him with lack of membership and its
attendant consequences which had cost him his job
earlier.
I do not believe that the September 24 letter, in these
circumstances, should be considered effective as
cutting off backpay, and I would adopt the remedy
proposed by the Trial Examiner.
i Delete the words "the foregoing letter" in the fourth sentence of the
second paragraph in the Trial Examiner's Remedy section , and substitute
the words "the letter dated September 24, 1970."
2 The Trial Examiner recommended that the Respondent notify
American in writing , with a copy to Measel, that it had no objection to the
employment of Measei, and that it make Measel whole until 5 days after
American received such notice . The record shows, however, that the
Respondent had already so notified American in a letter dated September
24, 1970, and had sent a copy to Measel We shall modify the Order
accordingly
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Notice to all members of this Union, pursuant to the
Recommended Order of the Trial Examiner of the
National Labor Relations Board and in order to
effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT attempt to cause American
Riggers, Inc., to discharge employees, or discrimi-
nate in any other manner in regard to hire or
tenure of employment or any term or condition
193 NLRB No. 156
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof except as authorized in Section 8(a)(3) of
the National Labor Relations Act.
WE WILL make whole Gordon L. Measel for any
loss of pay by reason of the discrimination against
him.
WE WILL NOT cause or attempt to cause in a
coercive manner employees to withdraw charges
filed with the National Labor Relations Board.
WE WILL NOT in any like or related manner
restrain or coerce employees of American Riggers,
Inc., or any other employer, in the exercise of the
rights to refrain from engaging in the specified
activities protected under 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 National
Labor Relations Act.
MILLWRIGHT LOCAL
UNION No. 1311 OF THE
UNITED BROTHERHOOD
OF CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 2407, Federal Office Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on September 8, 1970, by Gordon L. Measel, an
individual, herein called Measel, the Regional Director for
Region 9 of the National Labor Relations Board, herein
called the Board, issued a complaint on October 15, 1970,
against Millwright Local Union No. 1311 of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called the Respondent or the Millwright
Local, alleging violations of Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, as amended, (29 U.S.C.
Sec. 151, et seq ), herein called the Act. In its duly filed
answer to the complaint, the Respondent, while admitting
certain allegations of the complaint, denied the commission
of any unfair labor practices.
Pursuant to notice, the hearing in this case was held
before me at Dayton, Ohio, on January 12, 1971. All parties
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Oral argument was waived.
Briefs were filed by counsel for the General Counsel and
the Respondent. Upon consideration of the entire record,
including the briefs of the parties, and upon my observation
of each of the witnesses as they appeared before me, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
American Riggers, Inc., herein called American, is an
Ohio corporation engaged in steel erection and rigging and
in the installation of materials and handling equipment at
Dayton, Ohio, and elsewhere. During the year immediately
preceding the issuance of the complaint herein, a represent-
ative period, American performed services of a value in
excess of $50,000 for firms and employers, each of which
had a direct annual inflow in interstate commerce of
materials and products valued in excess of $50,000 which
were purchased and shipped directly to them in Ohio from
various places outside the State of Ohio.
I find that American is an employer as defined in Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Did the Respondent cause American to discriminato-
nly discharge Gordon L. Measel?
2. Did the Respondent restrain and coerce Measel by
conditioning his acceptance for membership in the
Respondent upon Measel's withdrawal of the unfair labor
practice charge in the instant case? I
B. The Events
Before the events from which this case arises, Gordon L.
Measel was a member of Carpenters' Local 104 in Dayton,
Ohio, hereinafter called the Carpenters Local. According to
Measel, he had been a journeyman carpenter for approxi-
mately 6 years. Housed in the same building as the
Carpenters Local is the Respondent herein, sometimes
referred to as the Millwright Local. Both locals are
members of the same District Council and the same
International Union, the United Brotherhood of Carpen-
I This issue arises from an amendment to the complaint made at the
hearing herein
MILLWRIGHT LOCAL UNION NO. 1311
ters And Joiners of America, AFL-CIO, herein referred to
as the International.
The Respondent is an independent offshoot of the
Carpenters Local having been formed in 1965 by a group of
members of the Carpenters Local who specialized in
millwright work. Historically, the Millwright Local has
attempted to maintain its separate autonomy as a labor
organization. However, as an internal union procedure, as
provided in the constitution of the International, the
Respondent issues working permits to other members of the
International desiring to work out of their own local union's
jurisdiction. Such working permits are issued for 1-month
periods.
Formerly, from 1965 when it became a separate entity,
until sometime in 1969, the Respondent permitted transfer
of membership from the Carpenters Local to the Millwright
Local without a written examination as to the qualifications
of the membership applicant. However, sometime in either
late 1969 or early 1970, the Respondent adopted, pursuant
to the authority therefor in the International constitution,2
a rule whereby persons desiring membership in the
Respondent were required to take a written examination.
During 1969, before the written examination rule was
adopted by the Respondent, Gordon Measel's father
became a member of the Respondent without taking an
examination.
Evidently, shortly after his father had been admitted to
membership in the Respondent, Measel decided that he,
too, would like to be a millwright rather than to continue
his work as a carpenter. He spoke to Boyd Jackson,
business representative and financial secretary of the
Respondent, about his desire to become a member of the
Respondent. Jackson told Measel that the latter should
work on a permit out of the Respondent and see if he liked
the type of work after which the Respondent would see
what they could do about the matter. Thereupon, Measel
obtained a permit from Jackson and worked for a Maxon
Construction Company for a few months. The job then
ended and Measel went back to another occupation
because millwright work was unavailable at the time.
During the time that Measel worked for Maxon he had no
difficulty in obtaining monthly work permits from the
Respondent.
Sometime in June 1970, Measel obtained employment
with American as a millwright. Measel heard of the job
through his father who was then also working for American
and had no difficulty in obtaining a work permit from the
Respondent. A second work permit was also obtained by
Measel when the first one expired, with the second work
permit expiring on August 3, 1970.
During this period of time Measel sought membership in
the Respondent. In either June or July 1970 Measel
attended a meeting of the Respondent and asked to be
cleared into the Respondent. He attended the meeting with
a clearance card from the Carpenters Local and his book.
According to Measel, he had a conversation with James
Gann, business representative of the Respondent, who told
2 Sec 28(b) of the International constitution and bylaws contains the
provision with regard to examinations by local and auxiliary unions.
9 All of the foregoing from credited portions of the testimony of Measel
and Gann Although Measel omitted on direct examination to testify to the
fact that he had not appeared for the scheduled examination, he did so
997
him to bring his clearance card and book to the meeting
and that he would be cleared into the Respondent. When
Measel arrived at the meeting he handed his book and
clearance card to member Chuck Smith who told him that
they were not taking in any new members. However, he was
also told at the meeting in July that it would be necessary
for him to take a test to establish his qualification for
millwright work. Measel answered, at the meeting, that it
was not necessary for him to take the test, that his father
had been admitted to the Respondent without a test. It was
explained to Measel that his father had been admitted a
year and a half before that, and that since that time the
testing program had been initiated. As a result a test was
scheduled for Measel on July 28. At the scheduled time the
examining board, including Gann, appeared to give Measel
the test but Measel, however, failed to appear.3
On August 12, 1970, after Measel had been on the
American job for approximately 2 months, he was advised
by the job steward that his work permit had expired. As a
result, that night after work, Measel went down to the
union hall to apply for a new permit for the next month. He
asked Gann to renew his permit. Gann answered that they
were not renewing any permits. Measel asked Gann if it
was not true that the law stated that the Respondent had to
renew Measel's permit and Gann answered "yes." Then
Gann said that he did not have to do anything with regard
to the permit since he was not the financial secretary and
the financial secretary was the only one who could actually
write a permit. Gann told Measel that if he desired, Measel
could wait around to see Boyd Jackson, the financial
secretary, who might renew the permit. Measel waited in
the outer office. While he was so waiting, Gann engaged in
conversations with other men who were waiting in the hall.
Gann, in his conversation with these men, began referring
to people working from other crafts taking work from the
men of the Millwright Local while that local had men out of
work. After this conversation proceeded for a time, Gann
turned to Measel and said "Well you just won't need a
permit. I'll just call up and get you fired." Gann then went
to the telephone and called John Addison, who was
engineering project manager for American .4
Gann asked Addison if the latter was aware of the fact
that he was working a permit man. Addison answered in the
affirmative and mentioned Gordon Measel. Gann then
stated that he had quite a few "book members" sitting and
not working and that he would like to get those book men
back to work. Gann asked Addison if the latter would lay
off Measel. Addison answered that he was satisfied with
Measel's work and he felt that American should not be
hampered with training a new man since Measel had been
working for American for some time. To hire a new man
would necessitate putting the new man through a training
period and Addison said that he did not feel that it was the
Company's obligation to do that because it was satisfied
with Measel's work.
Gann continued to discuss the matter and finally told
Addison that Gann was going to send a new man up to the
admit on cross-examination.
4 From the uncontroverted testimony of Measel which I credit Gann in
his testimony did not substantially refute this portion of Measel's
testimony.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobsite to replace Measel. Addison told Gann that the new
man would not be paid until Addison arrived at the jobsite
with a check to pay off Measel. This ended the
conversation.5
The record does not disclose that there were any overt
threats or any coercive statements made by Gann to
Addison during the conversation in which he requested that
Addison discharge Measel. However, it should be noted in
connection therewith that Addison testified, without
contradiction, that American calls the Respondent's union
hall when it needs millwrights for a particular job and that
this procedure had been followed for about 2 years, since
the time that American became signatory to the contract
which the millwrights had with the Associated Contractors
of Ohio, of which American is a member. Also, in
connection with this conversation, both Addison and Roy
B. Parker, superintendent for the job on which Addison was
employed, testified that Measel performed his services for
the Respondent in a most satisfactory manner and had no
difficulty in performing the millwright work assigned to
him.
The following morning, August 13, a book member
assigned by Gann appeared on the jobsite. About 10:30 in
the morning, Addison came to the jobsite with a check for
Measel and Parker then discharged Measel. On Measel's
termination slip, written by Parker, is the reason for the
discharge as understood by Parker which was "as requested
by Millwright Local Union No. 1311-Mr. Gann."
Following his dismissal from American's employ, Measel
went to the Respondent's hall and again spoke with Gann
concerning Measel 's admission into the Union. Gann
informed Measel that Gann was busy but that he would
meet with Measel one morning during the following week
to see about arrangements for getting Measel membership
in the Respondent. Thereafter Measel called Gann on at
least three or four occasions regarding the proposed
meeting . Finally Measel was advised to go to the
Carpenters Local and secure a clearance card and dues
book. Measel did so and left his clearance card and dues
book at the Respondent's office.
On September 7, Measel attended the Respondent's
meeting and was again advised by Smith, a member of the
examining board and by Lee Hunter, Respondent's
president, that he would have to take a test before he could
be made a millwright and a member of the Respondent.
Measel protested claiming that Gann had advised him that
he would not have to take a test before becoming a member
of the Respondent. Thereafter, on September 8, Measel
5 From the credited testimony of Addison as supported by the
testimony of Robert Kohls , vice president of American who listened to the
conversation on an extension telephone in American 's office I do not
credit completely Gann's version of the conversation which for the most
part supports Addison's version with the exception that Gann testified that
he did not use the term "book members" or "book men" but rather used
the term " local millwnghts " Neither Addison nor Kohls, who were
officials of American , had any particular interest in the outcome of this
proceeding inasmuch as American was not named as a party thereto
Accordingly, I consider them more objective witnesses than I do Gann
and, therefore , from my observation of the three individuals at the hearing
and because of the greater objectivity of Addison and Kohls, I credit their
version and do not credit the version of Gann
6 The foregoing from the credited testimony of Measel While Measel
filed charges with the Board alleging violations of Section
8(b)(2) and (1)(A) of the Act.
Some 2 or 3 weeks thereafter, the Respondent contacted
Measel with regard to Measel's taking the examination.
Thereafter, in about 1 week, Measel did take the
examination and was advised by the examining board and
by Gann that Measel had passed the test and would be
admitted to membership after a vote by the membership at
the next regularly scheduled union meeting.
On November 11, the day of the next scheduled regular
union meeting, Gann called Measel sometime in the
afternoon. Gann advised Measel that the latter would have
to go with Gann to the Respondent's attorney's office and
sign an affidavit dropping the charges which Measel had
heretofore filed before Measel could be accepted into the
Union that evening. Measel at first refused to comply, but
Gann emphasized to Measel that the only way that the
latter would be accepted into membership of the Respon-
dent was to sign such an affidavit. Thereafter Measel met
Gann at the Respondent's hall and from there they
proceeded to the Respondent's attorney's office. At the
office Measel was requested to sign the affidavit.
This affidavit stated that Measel was not only going to
withdraw the charges which he had filed in the instant case
against the Respondent but also contained an admission
that the charge against the Respondent was "in substance
completely erroneous in every respect." When presented
with this affidavit, Measel at first protested and expressed
reluctance at signing the affidavit claiming that it was not in
substance true. Measel insisted that the evidence he had
submitted to the Board was not substantially erroneous.
However, Measel again asked Gann if signing the affidavit
was the only way in which Measel would be admitted into
union membership, Gann replied that it was. Thereupon
Measel signed the affidavit. Later that evening Measel was
admitted into membership in the Respondent Union .6
It should be noted, in connection with Measel's
discharge, by letter dated September 17, 1970, Respondent
informed American that Respondent had no objection to
American's employing Measel.
C. Concluding Findings
1. As to the discharge of Gordon Measel
Counsel for the General Counsel contends that American
discharged Measel at the behest of the Respondent for the
discriminatory reason that Measel was not a member of the
Respondent. On the other hand, the Respondent contends
that it merely asked, but did not demand by threats or other
was a very unobjective and indeed prejudiced witness, so was Gann Gann
testified that he merely suggested to Measel that it would be easier for the
latter to be received by the membership if he signed the affidavit and that
Measel did so willingly and without expressing any reluctance However, I
accept Measel 's version of the conversation between the two and of the
occurrences on the afternoon in question not only from my observation of
both Measel and Gann, but also from the fact that the events took place on
the afternoon that Measel was to be admitted into membership in the
Respondent It is therefore consistent with probability that Gann insisted
upon the affidavit being signed before Measel was admitted into
membership . Otherwise, the signing of the affidavit could have taken place
after the meeting instead of before , as insisted upon by Gann Accordingly,
I find and conclude that Measel 's version is the more reliable of the two
versions and I accept it
MILLWRIGHT LOCAL UNION NO. 1311 999
coercive means, that Measel be replaced by a "local
millwright" in accordance with a provision of the
bargaining agreement between Respondent and American
which gives preference in hiring to "local millwrights .. .
without regard to race, creed or union membership," and
that Measel was not a millwright. Under these circum-
stances , Respondent argues, the discharge of Measel was
not discriminatory.
It has heretofore been found that Respondent's business
representative , Gann, in requesting that Measel be laid off,
stated that he had "book men" sitting on the bench and that
he would like to get those book men to work. It has also
been found that Gann expressed his opposition to a "permit
man" (Measel) working while the book men were out of
work. This he expressed to persons in the presence of
Measel dust before Gann spoke to Addison on the
afternoon of August 12. Moreover, Gann sent a book man
to take Measel's place on August 13 when Measel was laid
off.
Although the bargaining agreement between the Respon-
dent and American contained a lawful 8-day union-security
provision, and Measel had not perfected his membership in
the Respondent at the time of his layoff, Gann did not, in
seeking Measel's layoff, invoke the union-security provi-
sions of the contract. While he could have, it is clear from
all of the foregoing that he did not seek the discharge of
Measel for that reason, but because he chose to replace a
permit man with a book member of the Respondent.
The Board has held that a labor organization violates
Section 8(b)(2) and (1)(A) of the Act when it causes an
employer to discriminate against an employee because of
his nonmembership in the labor organization, absent a case
of noncompliance with a union-security clause . Here the
latter case is not presented.7
Also, Measel was qualified for the millwright work he was
performing for American. This is established by Addison's
protest to Gann's demand that Measel be discharged. In
fact, both Gann and secretary Jackson admitted that they
had received no complaints from American with regard to
Measel 's work. Additionally, Gann admitted Addison's
protest to Gann's request that Measel be discharged.
Under all these circumstances the only conclusion
possible that can be drawn is that the criteria Gann utilized
was that Measel had to be removed from his employment
because he was not a member of the Union, not that he was
not qualified.
Nor does the fact that Gann did not threaten or otherwise
expressly coerce American to force American to discharge
Measel present an adequate defense. The record establish-
es, as found above, that American looked to the
Respondent as its main source of supply of labor to
perform millwright work. Indeed, the record establishes
that American and Respondent maintained a practice
whereby the Respondent was the sole supply of American's
labor. Thus, in view of Respondent's potential economic
power to deprive American of its labor market, the mere
request by Gann, even in the absence of threat or other
T General Teamsters Local 439 etc (Los-Angeles-Seattle Motor Express,
Inc.), 172 NLRB No 231.
8 Sub-grade Engineering Company, 93 NLRB 406, 407, Intl Brotherhood
coercion, exerted sufficient pressure to accomplish the ends
desired by Respondent .8
Accordingly, I find and conclude that by causing
American to discharge Measel in violation of Section
8(a)(3) of the Act, Respondent violated Section 8(b)(2) and
(1)(A) of the Act.
2. As to the affidavit
As found above, after Measel passed the examination
given by the Respondent and charges were still pending
before the Board, he was advised by Gann that the only
way he could be assured that the membership would vote
Measel into the Union would be to sign an affidavit or
statement withdrawing the unfair labor practice charge.
The General Counsel contends that this action of the
Respondent to force the withdrawal of the charge by
Measel was in and of itself a violation of Section 8(b)(1)(A)
of the Act.
The Respondent contends that there was nothing
unlawful in its action and that it was merely attempting to
effectuate a settlement of the charge by arrangement with
Measel, the Charging Party. Also, the Respondent contends
that Measel signed the affidavit solely as a means to obtain
membership in the Union, reserving in his own mind the
resolution that he would not actually withdraw the charge.
I find merit in the General Counsel's contention because
the actions of the Respondent went far beyond the mere
attempt to settle an unfair labor practice charge. As
heretofore found, the Respondent caused Measel's dis-
charge because the latter was not a member of the
Respondent. Under these circumstances Measel knew that
the only way he could obtain millwright work in the
Dayton, Ohio, area was to become a member of the
Respondent. Thus Measel knew that his acceptance into
membership in the Respondent was the open door to his
being accepted as an employee in the millwright trade.
Accordingly, he was being forced to sign the affidavit in
order to buy his right to work as a millwright. Thus, the
action of the Respondent, in informing Measel that he must
sign an affidavit before his acceptance into membership in
the Respondent could be assured, went far beyond the mere
attempt to settle the unfair labor practice which Measel had
earlier filed with the Board.
The Board has held that "it is a violation of Section
8(a)(1) for an employer to induce an employee to withdraw
unfair labor practice charges against it, and as both Section
8(a)(1) and Section 8(b)(1)(A) have in common a proscrip-
tion against restraint and coercion of employees in the
exercise of the rights guaranteed them in Section 7 of the
Act, it seems clear" that an act of coercion by a union to
induce an employee or a potential employee to withdraw
charges against the Union is a violation of the Acts The
Board has further held that a labor organization infringed
on the rights of employees under the Act by resorting to
unlawful means to prevent and restrict employees from
filing charges. The Board has further held that as such
conduct by an employer violated Section 8(a)(1), so does a
labor organization's use of restraint or coercion violate
of Electrical Workers, Local 861, 135 NLRB 498.
9 Local 294, International Brotherhood of Teamsters, etc. (Valetta
Trucking Company), 116 NLRB 842, 844.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b)(1)(A) when it seeks by coercion to restrict the
right of an employee to file a charge or to induce him to
withdraw a charge already filed.10
In fact, the Supreme Court has held 11 that any coercion
used to discourage, retard, or defeat access to the Board is
beyond the legitimate interest of a labor organization.
The instant case presents just such a situation. Here the
Respondent held over Measel's head the proposition that
he could not get ajob in the millwright trade in the Dayton
area unless he became a member of the Union and that he
could not become a member of the Union unless he signed
an affidavit withdrawing the charge he earlier had filed.
This, then, was coercion used to discourage or defeat access
to the Board and as such constitutes restraint and coercion
in violation of Section 8(b)(1)(A) of the Act. I so find.
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 operation of the
employer, American, 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 thereof.
CONCLUSIONS OF LAW
1. American Riggers , Inc., is an employer whose
operations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Millwright Local Union No. 1311 of the United
Brotherhood 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 American
Riggers, Inc., to discriminate against Gordon L. Measel, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(2) of the Act.
4. By the foregoing conduct, thereby restraining and
coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
5. By attempting to coerce Gordon L. Measel to
withdraw his charge against the Respondent, Respondent
has engaged in unfair labor practices within the meaning of
Section 8 (b)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER13
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent attempted to cause
and did cause American, the employer, to discharge
Gordon L. Measel because of his nonmembership in the
Respondent. I shall therefore recommend that Respondent
forthwith advise the employer in writing, with a copy to
Measel, that it has no objection to the employment of
Measel in the position for which he was hired or in
substantially equivalent position, without prejudice to
seniority or other rights and privileges he would have
acquired absent the discrimination against him.12 I shall
further recommend that Respondent make Measel whole
for any loss of pay suffered by reason of his discharge. Said
loss of pay, based on earnings Measel normally would have
earned from August 13, 1970, until 5 days after receipt of
the foregoing letter by American shall be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum as provided in
Isis Plumbing & Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact, and upon
the entire record in the case I make the following:
10 See Local 138, International Union of Operating Engineers, etc, 148
NLRB 679
11 N L. R B v Industrial Union of Marine and Ship Workers, 391 U S.
418, 424
12 Although Respondent by letter dated September 17, 1970, has
already informed American that it has no objection to Measel's
employment by American, such letter was not posted in either the
Respondent's hall or American 's place of business , nor was Measel
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent
Union, Millwright Local Union No. 1311 of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause American Riggers,
Inc., to discharge employees or discriminate in any other
manner in regard to hire or tenure of employment, or any
term or condition thereof, except as authorized by Section
8(a)(3) of the Act.
(b) Causing or attempting to cause employees to
withdraw charges filed with the Board in a coercive manner
in violation of Section 8(b)(1)(A) of the Act.
(c) In any like or related manner restraining or coercing
employees of American Riggers , Inc., or any other
employer, in the exercise of the right to refrain from
engaging in a specified activity protected under 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.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Notify American Riggers , Inc., in writing forthwith
that it has no objection to its employment of Gordon L.
Measel in his former or substantially equivalent position
with seniority and other rights dating from August 13, 1970.
supplied a copy.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and Recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order , and all objections thereto
shall be deemed waived for all purposes.
MILLWRIGHT LOCAL UNION NO. 1311 1001
(b) Make whole Gordon L. Measel for any loss of pay
suffered by reason of the discrimination against him in the
manner provided in the section entitled "The Remedy."
(c) Post at its business office in Dayton, Ohio, and at the
offices of American Riggers, Inc., the latter willing, copies
of the attached notice marked "Appendix." 14 Copies of
said notice on forms provided by the Regional Director for
Region 9, shall, after being duly signed by an agent of the
Respondent Union, be posted immediately upon receipt
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
thereof and maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members and employees are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.15
16 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 9 , in writing , within 20 days from
the date of this Order, what steps the Respondent Union has taken to
comply herewith "