Millwrights & Machinery Erectors Local 2471

National Labor Relations Board - Board Decisions

Jan 9, 1962

135 N.L.R.B. 79 (N.L.R.B. 1962)

MILLWRIGHTS & MACHINERY ERECTORS LOCAL 2471 794
tribute products which are not manufactured by the Employer, hires-
his own help, and can extend credit to his customer without the-
Employer first' passing on this arrangement. The Employer gives
him neither a bonus nor a vacation, nmakes,no tax deductions for him,
carries no workman's compensation or other insurance on his behalf,
and does not train or supervise him on the route.
It is well established that- in determining the status of persons-
alleged to be independent contractors, the Act requires the application-.
of the "right to control" test.8 Where the person for whom the serv-
ices are performed retains the right to control the manner and means
by which the result is to be accomplished, the relationship is one of
employment. On the other hand, where control is reserved only as to,
the result sought, the relationship is that of independent contractor.
The resolution of this question depends upon the facts of each case
and no one factor is determinative.°
We find, from the above facts and from the record as a whole, that
the distributors involved herein retain sufficient independence of
action as to the manner and means of accomplishing their work to,
constitute independent contractors, and that they are not employees.
of the Employer within the meaning of the Act.10 Accordingly, we
exclude them from the unit. We find that the following employees
of the Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the A t.
All retail and wholesale salesmen and plant production employ y('s'
at the Employer's Flint, Michigan, plant, including swingmen, utility-
men, garage mechanics, and maintenance men, but excluding official
clerical employees, distributors, sales supervisors , laboratory super--
visors, plant manager, and other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
"Squirt-Nesbitt Botting Corp., 130 NLRB 24; Golden Age Dayton Corporation, 124-
NLRB 916.
° C. J. Patterson, d/b/a Serv-17s Bakers of Oklahoma, 121 NLRB 84.
10 Golden Age Dayton Corporation, 124 NLRB 916, 919; Hugh Major Truck Service, 124
NLRB 1387 ; Cement Transport Inc., 111 NLRB 175; Nehi Bottling Co., Inc., 101 NLRB 68.-
Millwrights and Machinery Erectors Local Union No. 2471,.
United Brotherhood of Carpenters and Joiners of America
and L. G. Dutton, Wendell Ash, John Nabors, Kenneth E.
Carney, and Monroe Turpin , Charging Parties and' Otis Ele-
vator Company, Party to the Agreement . Cases Nos. 15-CB--
.498-1,15-CB-498-3,15-CB-498-5,15-CB-.498-7, and 15-CB-498-9.
January 9, 1962
DECISION AND ORDER
On June 21, 1961, Trial Examiner Sichiey Lindner issued his Inter-
135 NLRB No. 19.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermediate Report at-
tached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown).
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report and the Re-
spondent's exceptions and brief, and finds merit in some of the Re-
spondent's exceptions.' Accordingly, the Board adopts the findings
of the Trial Examiner only insofar as they are consistent herewith.
The Trial Examiner found, in substance, that the Respondent
Union violated Section 8(b) (1) (A) and (2) of the Act by causing
and attempting to cause the Employer to discriminatorily refuse em-
ployment to the Charging Parties because they were not members of
the Respondent Union. He based this conclusion on his findings that
(1) Hightower, the Employer's agent, acted in the mistaken belief
that there existed an arrangement or understanding between the Em-
ployer and the Union that the Employer would employ only those
millwrights who were members of, and who were referred or cleared
by, the Union, and (2) Pennington, the business agent and financial
secretary of the Respondent Union, refused to issue permits to the
Charging Parties in affirmance and reenforcement of that mistaken
belief.
The record shows, however, that the Employer and United Brother-
hood of Carpenters and Joiners of America, herein referred to as the
Brotherhood, the Respondent Union's parent organization, were
parties to a valid nondiscriminatory hiring hall agreement,2 in which
the Employer agreed to hire journeymen through the local of the
Brotherhood having jurisdiction in the region in which a job was to
be performed. In March or April 1960, Burnham, who was in charge
of the Employer's operations in the Panama City, Florida, area, spoke
with Pennington about furnishing men for a job the Employer was
to perform in Pennington's territorial jurisdiction; Pennington agreed
t The Respondent Union requested the Board to overrule the Trial Examiner's credibility
findings in certain respects . However , it is established Board policy not to overrule a Trial
Examiner 's credibility findings unless they are clearly erroneous . Such a conclusion is not
warranted here. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362
(C.A 3).
2 The General Counsel did not contend at the hearing that this agreement was unlawful,
and no exception has been taken to the Trial Examiner's finding that it is valid in all
respects
MILLWRIGHTS, & MACHINERY ERECTORS LOCAL 2471 81
to furnish qualified millwrights. In August, while Burnham was on_
vacation, the Employer sent Hightower from its Atlanta office to
supervise the installation of pinsetting equipment at a Panama City
bowling alley. Before he left Atlanta, Hightower told the five indi-
vidual Charging Parties, who had done pinsetting installation work
for him in Atlanta and were members of Atlanta or North Carolina
locals of the Brotherhood, that they could work on the Panama City
job. He told them, according to his own testimony, that-"If they
could clear through the local and everything was all right with the
business agent, and they were on the job to go to work that I would
like to hire them."
All the Charging Parties drove to Florida and, without checking
in at the Respondent Union's office, applied for work directly to High-
tower at the jobsite. Hightower telephoned Pennington and told him
the men would like to have permits to work on the job. Pennington,
who had already instructed a member of the Respondent Union to
"get a few men to be available" for this job, told Hightower he would
not issue the 'permits, but, at Hightower's request, he went to the job-
site to discuss the matter. When Pennington arrived, Hightower told
Pennington in the presence of Dutton, one of the Charging Parties,
that he, Hightower, would like to hire the five men who had come
from Atlanta, and that, "if they could get permits, and if it was all
right with [Pennington, he] would like to work these men and they
would have a job if they could clear through and everything would
be all right." Pennington, however, refused to issue the permits,. and
told Hightower that if he put the five men to work, "You know you
are going to need some more men on another job that you've got com-
ing up in ml jurisdiction." As he was leaving the project, Penning-
ton told the other four Charging Parties, "If you go to work, you
will be on your own." The Charging Parties then left the jobsite,
and the work in question was performed by men who had been se-
lected for this job on Pennington's instructions. The next day,
Pennington wrote a letter to the Atlanta local, of which most of the
Charging Parties were members, in which he expressed regret for
being unable to permit these men to work "since we have most of our
members on the out-of-work list at this time."
On these facts the Trial Examiner found, and we agree, that High-
tower made it clear to Pennington that he would not hire the Charging
Parties unless Pennington issued permits to them, and that Penning-
ton refused to do so. We do not agree, however, that this evidence
establishes that Pennington refused to issue the permits because the
Charging Parties were not members of his local.
The Respondent Union was established, by the agreement between
its International and the Employer, as the source for millwrights for
the Panama City job, and it was required, under that agreement, to
634449-62-vol. 136-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide men on a nondiscriminatory basis. Hiring by the Employer
directly at the jobsite was provided for by the agreement only if the
Union failed to provide men within 48 hours. Burnham had previ-
ously talked to Pennington about supplying qualified men, and there
is no indication that Pennington agreed to refer only millwrights who
were members of the Respondent Union. Before Hightower requested
permits for the Charging Parties, Pennington had already taken steps
to provide men for the Panama City job. Although he failed to give
any reason for his refusal to issue the permits at the jobsite, there is
no evidence that his refusal was caused by their lack of membership
in the Respondent Union. Moreover, he was acting within the terms
of the agreement in refusing to issue the permits because the Charg-
ing Parties had circumvented the hiring hall procedures. Penning-
ton's remark about the Employer's probable need for men for future
jobs in his area made no reference to the Charging Parties' lack of
membership in his local, and, we find, was consistent with an attempt
to enforce the valid hiring hall procedures. Similarly Pennington's
remark to the four Charging Parties that they would be on their own
if they went to work indicated only that the Union would not repre-
sent these men if they accepted the jobs. We find nothing improper
in this remark as their employment would have been a violation of the
hiring hall agreement, and as the Union had no obligation to represent
them at that time. The Trial Examiner relied on Pennington's letter
to the Atlanta local in finding discriminatory motivation. In our view,
however, the letter was ambiguous. It can be read to mean that the
permits were denied only because there were a number of men on the
out-of-work list before the Charging Parties sought these jobs. In
any event, we find that Pennington's conduct at the jo'bsite and this
letter, viewed separately or together, do not establish by a preponder-
ance of the evidence that the refusal to issue the permits was based upon
lack of membership in the Respondent Union. Under all the circum-
stances, therefore, we find that the record fails to support the allega-
tion that the Respondent Union caused or attempted to cause the Em-
ployer to discriminate against the Charging Parties in violation of
Section 8(b) (1) (A) and (2) of the Act.'
3 Local Union No. 106, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, at al. (Otis Elevator Company, et al.), 132 NLRB 1444; Local Union No. 450, Inter-
national Union of Operating Engineers, AFL-CIO (Proton), 133 NLRB 1312.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136) was heard in Panama City, Florida, on January 23
and 24, 1961, pursuant to due notice, with all parties represented and participating
in the hearing. An order consolidating cases, complaint and notice of hearing based
on charges duly filed was issued by the General Counsel of the National Labor
Relations Board on December 14, 1960, against United Brotherhood of Carpenters
MILLWRIGHTS & MACHINERY ERECTORS LOCAL 2471 83
and Joiners of America, Millwright Local 2471,1 herein called Respondent Union.
The complaint alleged in substance that Respondent Union has engaged in unfair
labor practices proscribed by Section 8(b)(1)(A) and (2) of the Act by reason
of the following: '
Since on or about March 23, 1960, and at all times material herein, Respondent
Union and Otis Elevator Company, herein called Otis, (1) have by practice and/or
understanding and/or agreement, delegated to Respondent Union exclusive and uni-
lateral control over the selection of millwrights to be hired and/or employed by Otis
at its various job locations within Respondent Union's territorial jurisdiction, including
the installation and erection of automatic pinsetting equipment at the bowling alley of
Tyndall Air Force Base, Florida, from on or about August 12 to 23, 1960; (2) the said
practice, understanding, or agreement required membership in good standing and/or
referral and/or clearance from Respondent Union as a condition of employment as
millwrights with Otis; (3) the said practice, understanding, agreement, or contract
failed to conform to the requirements and safeguards set forth in Mountain Pacific
Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883, 1Q67; and
(4) the respondent Union through its business agent, J. G. Pennington, caused and/or
attempted to cause Otis to refuse to hire or employ L. G. Dutton, Wendell Ash, John
Nabors, Kenneth Carney, and Monroe Turpin by refusing to refer or clear them
for employment at Otis' Tyndall Air Force Base bowling alley job.
By its answer Respondent Union denied the allegations of unfair labor practices.
Briefs were received on March 9, 1961, from the parties and have been duly
considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF OTIS ELEVATOR COMPANY
Otis Elevator Company is a New Jersey corporation with its principal office in
New York, New York. It is engaged in the erection, supply, and servicing of ele-
vators. It also installs automatic pinsetting equipment for bowling alleys in various
States of the United States. In the performance of installing automatic pinsetting
equipment during the time material herein, Otis shipped into the State of Florida
from points outside the State materials valued at between $200,000 and $300,000 and
received for services rendered to the Brunswick Corporation an amount in excess
of $100,000. I find that Otis is engaged in commerce within the meaning of the Act.
See Otis Elevator Company, 102 NLRB 770. -
II. THE LABOR ORGANIZATION INVOLVED
Millwrights and Machinery Erectors Local Union No. 2471, United Brotherhood
of Carpenters and Joiners of America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Under date August 29, 1958, Otis and United Brotherhood of Carpenters and
Joiners of America, by its General President M. A. Hutcheson, entered into an
agreement, which among other clauses provided for a hiring hall arrangement and
which appears valid in all respects?
James Burnham, manager of Otis' office in Mobile, Albama, and in charge of its
business in South Alabama and Northwest Florida, testified that in March or April
1960 he met with J. G. Pennington, business agent and financial secretary of Re-
spondent Union, in the latter's office in Pensacola, Florida, to advise Pennington
that Otis had a job coming up within Respondent Union's territorial jurisdiction and
to ask that he furnish the men to do the job. Burnham stated he told Pennington,
whom he had not previously met, that he assumed the conditions which were
applicable when he dealt with another union business agent would prevail. Penning-
ton agreed to furnish the qualified millwrights.
On or about August 16, 1960, Otis was schedueld to start installing automatic
pinsetting equipment at the Tyndall Air Force Base bowling alleys in Panama City,
Florida. This was Otis' second job within Respondent Union's territorial jurisdic-
' The correct name of Respondent Union as amended at the hearing is as set forth in the
title of the case
2 The legality of this agreement, received in evidence as an exhibit, is not in Issue in this
proceeding.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion . Burnham was on vacation at this time . Bert Hightower, supervisor of installa-
tion and adjustment of automatic pinsetters for Otis in the vicinity of Atlanta,
Georgia , was sent to Panama City to be in charge of the job . Hightower testified
that Dutton, Ash, Nabors, Carney, and Turpin, the Charging Parties herein, worked
under his supervision on various jobs performed by Otis in Atlanta, Georgia, the
last of which was finished during the week before August 15. Hightower testified
further that these men talked with him about going to work on the Tyndall Air
Force Base job. Although Hightower was admittedly aware of Otis' practice of
contracting local unions to recruit experienced millwrights in the field, he told the
men "if they could clear through the local and everything was all right with the
business agent and they were on the job to go to work," he would like to hire them.
On the morning of August 15, Dutton, Ash, Nabors, Carney, and Turpin,3 who
had driven in the same car from Atlanta, Georgia, applied for work permits to
D. B. Halstead, business agent, at the office of Local 875, United Brotherhood of
Carpenters and Joiners of America, in Panama City, Florida. Dutton acted as
spokesman for the group 4 After considerable conversation during which Dutton
told Halstead that the group came down to Panama City to do some fishing and
they wanted work permits in case they did pick up some work, Halstead advised that
he could not issue permits and would not feel right about taking their money for
permits unless he had a job to offer them, which he did not have. Halstead went
on further to say that if an employer made specific requests for men he would
issue the permits.
Shortly after Hightower arrived at the Tyndall jobsite on the morning of August
16, the group appeared and talked to him about going to work on the job. They
also related their conversation with Halstead. Hightower thereupon called Halstead
on the telephone and when it developed that Hightower intended to employ mill-
wrights rather than carpenters, Halstead referred him to Pennington. A call was
then made to Pennington who shortly thereafter came out to the jobsite.
Hightower testified that upon Pennington's arrival at the bowling alley, the two of
them and Dutton walked to the rear of the alley to talk. Hightower stated he told
Pennington that if the five men who had come down from Atlanta could clear
through the Union, obtain permits, and everything would be all right, he would like
to work them. After considerable discussion during which they sparred back and
forth as to who would need a permit,5 and how many permits would be issued, it is
clear from the record that Pennington refused to issue any permits to Dutton, Ash,
Nabors, Carney, and Turpin, either on Hightower's request or the individual requests
of the men. Hightower also testified he then asked Pennington if he would issue
permits to the Charging Parties if he (Hightower) would also give jobs to five of
Pennington's men. Pennington remained adamant and said he was not going to
issue any permits.
Dutton testified that during the course of the conversation Pennington reminded
Hightower that if he put the five men to work, "you know you are going to need some
more men on another job that you have got coming up in my jurisdiction." Dutton
also testified he told Pennington the men could work anywhere under the right-to-
work law and indicated he might go to Tallahassee to talk to Clyde Mills, Director,
Florida State Mediation Board, about their problem. Pennington told Dutton he
could go anywhere he wanted to but he was not going to get a permit.
While Pennington, Hightower, and Dutton were in the rear of the bowling alley,
Carney, Nabors, Turpin, and Ash were sitting at the entrance awaiting the outcome
of the discussion. Carney testified that after about 45 minutes Pennington came
back to where the four men were seated, asked each one his name, his local union
affiliation, and said no permits would be issued for the job. Carney also testified
that Pennington said: "If you go to work, you will be on your own." The five men
then left the jobsite to return to Atlanta.
Pennington admitted that Hightower requested that he issue permits to Dutton
and to the four other men who were sitting up front of the alley. He testified that
Hightower said it was entirely up to him since the men came down from Atlanta to
Panama City of their own free will. Pennington testified further that he explained
3 The first four named men were members of Local 225, United Brotherhood of Carpenters
and Joiners of America , located in Atlanta, Georga Turpin was a member of Local 707
located in Murphy. North Carolina.
'Dutton worked on and off for Otis over a 21,i-year period He had been designated
millwright foreman on previous jobs where they all worked together
5 Pennington testified he told Hightower that since Dutton was the millwrights ' foreman,
Otis could work him whether or not he was issued a permit.
MILLWRIGHTS & MACHINERY ERECTORS LOCAL 2471 85
to Hightower that his local did not issue permits , but when a union member comes
into the local's jurisdiction to work, he pays "foreign dues" and the proper place to
do this is at the office in Pensacola. Pennington noted that the five Atlanta men
"should have come by the office." He did not say, however, that even if they had
gone to the office in Pensacola he would have issued them "permits." Pennington
admitted that there have been exceptions to this requirement and recalled one occa-
sion when another bowling alley erector called him and he went to the job in Crest-
view, Florida, some 60 miles from Pensacola and there made the necessary arrange-
ments for the "foreign dues" on the jobsite. Pennington explained that when he told
the Atlanta men they could go ahead and work without a permit if they wanted to,
but "they would be on their own," he meant they would not be under the jurisdic-
tion of the local union for purposes of representation. Pennington testified that he
learned about the Otis job in Panama City prior to coming to the jobsite from union
member Aubrey Hutchinson and he told the latter to see if he could not get a few
men lined up and available for the job. The complement of millwrights who worked
on the Otis job in Panama City were all members of Respondent Union and although
not referred to the job directly by Pennington were told to go there by Hutchinson
who previously had been told by Pennington to line up men for the job. Pennington
also testified it was possible he gave millwrights who were referred to jobs by him,
instruction slips which contained information to the effect that the person named
on the slip belonged to a particular local union and was a millwright.
In a letter dated August 17, 1960, addressed to W. I. DeLoach, business agent,
Carpenters Local Union No. 225, Atlanta, Georgia, Pennington stated the following:
DEAR Snt & BROTHER : Just thought I would drop a few lines in reference to
come of your members coming into this jurisdiction to install Bowling Alley
equipment. I wish to express my regrets that I was unable to ,permit these mem-
bers to go to work since we have most of our members on the out of work list
at this time. These members certainly conducted themselves in a manner ac-
creditable to the Brotherhood in understanding this problem, with the exception
of one, and I appreciate it very much.
If possible I would like to have the address of all of these members so that
I can contact them if we have a supurlus [sic] of work. These members are:
Monroe Turpin, Wendell Ash, Kenneth Carney, John Nabors and L. G. Sutton
or Dutton.
Thanking you for your cooperation, I remain,
Based on the testimony of Hightower, Dutton, Carney, Nabors, Turpin, and Ash
which was mutually corroborative in this regard, together with the admission of
Pennington as set forth in his letter of August 17, I find that Pennington refused to
issue work permits when requested to do so by Hightower and by the men individually.
Conclusions
There is no question based upon my findings above that the object of Pennington's
conduct was to "cause or attempt to cause" Otis to refuse to employ the Charging
Parties herein in violation of Section 8(a) (3) of the Act. In reaching my conclusion
I do not find that Otis and Respondent Union, as alleged in the complaint, since
March 23, 1960, maintained a practice, understanding, or agreement whereby control
was delegated to the Respondent Union over the selection of Otis' millwrights. Nor
do I find that Otis agreed with the Respondent Union to employ only those millwrights
who were its members and who were referred or cleared by it for employment.
Rather, I predicate my finding of statutory violation on proof that Hightower, in
behalf of Otis, denied employment to the Charging Parties in the belief that there
existed an arrangement or understanding with the Respondent Union of the kind
described, and that Pennington too, in behalf of the Respondent Union, conducted
himself in such manner as to affirm and reinforce Hightower's belief.
From Hightower's credited version of his conversations with Pennington it is indis-
putably clear that he conveyed the impression that he was obligated pursuant to an
agreement or understanding between Otis and the Respondent Union to hire only
those who obtained clearance from the Respondent Union. In the case of the five
millwrights in question Hightower agreed to hire them only if in accordance with
commonly understood union practices they first obtained work permits from the
Respondent Union. Nothing Pennington said or did disabused Hightower of this
notion. On the contrary, as Dutton credibly testified, Pennington drove home the
point that Hightower was under compulsion to deny employment to the five appli-
cants because of his refusal to grant them permits, by his reminder that Hightower
would need other men on another job under his jurisdiction. This clearly implied
a threat to Hightower that future workers would be withheld by the Respondent
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union if Hightower hired the Charging Parties, notwithstanding their failure to
obtain the permits. Laboring under the misapprehension that the hire of these men
in such circumstances was a breach of an obligation to the Respondent Union would
invite a damaging reprisal to future operations by Otis, the Charging Parties were
denied the employment they sought, which Hightower would have granted them had
he felt free to do so. That this result was intended by Pennington is undeniably
revealed by his August 17, 1960, letter to the business agent of the Atlanta Local of
the Carpenters Union to which four of the five Charging Parties belonged and in
which Pennington made clear that he had acted in order to insure employment for
the members of Respondent Union at the expense of nonmembers.
It appears clear that Pennington utilized Hightower's misconception to the Respond-
ent Union's advantage as a means for compelling the denial by Otis of employment
to the Charging Parties. His strategy was as effective as would have been his positive
representation to Hightower that Otis was committed by agreement or understand-
ing with the Union not to hire them without the Respondent Union's clearance. The
Board has held that when a union implements its requests , or as in this case its
refusal to issue work permits upon request, by resort to economic pressure , it consti-
tutes an attempt to cause discrimination within the meaning of Section 8(b)(2) of
the Act. See Local Union No. 49, affiliated with International Union of Operating
Engineers, AFL-CIO (Associated General Contractors of Minnesota, Inc.), 129
NLRB 399; Local 432, Sheet Metal Workers International Association, et al. (Roun-
tree Company), 123 NLRB 1541. Indeed, as the Board held in Northwestern
Montana District Council of Carpenters' Unions, et a! (Glacier Park Company),
126 NLRB 889, "It suffices if any pressure or inducement is used by the Union to
influence the employer." See also Continental Baking Company, Inc., 128 NLRB
937, where the Board held that a union 's mere direction or instruction to an em-
ployer to discharge an employee for a reason not justified by the Act was an unlawful
attempt to cause" within the meaning of Section 8(b)(2).
Upon the foregoing and the entire record I find that Respondent Union by the
conduct of its business agent, Pennington, violated the Act by causing an attempting
to cause Otis to discriminate against Dutton ,6 Ash, Nabors, Carney, and Turpin.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Otis 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.
V. THE REMEDY
Having found that Respondent Union has engaged in certain 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. I shall also recommend that
Respondent Union make Dutton, Ash, Nabors, Carney, and Turpin whole for the
loss of the pay each may have suffered as a result of the discrimination practiced
against him by payment to him of a sum of money equal to the amount he would
normally have earned as wages on the Tyndall Air Force Base installation of auto-
matic pinsetting equipment by the Otis Elevator Company , less his net earnings during
' In its brief the Respondent Union raised the contention that since Dutton was the
millwright foreman on previous Otis jobs, it is not a violation of the Act to discriminate
in the hiring process against an applicant for a supervisory position. While it is true that
Dutton had the designation "foreman" on previous Otis jobs, the record establishes that
he applied for the Tyndall Air Force Base job along with the other men and sought the
same work as an hourly paid worker. More important, however, even though Dutton had
the designation "foreman" previously , he did not exercise independent judgment, but
merely acted as a conduit or contact man between his fellow employees and the Otis super-
visor on the particular job Dutton had no authority to hire or fire or to effectively recom-
mend such action. He worked along with the other men and routinely transmitted orders
and directions from Hightower. The fact that his hourly wage was slightly higher than
the other employees is not determinative of supervisory status . The occasional exercise
of supervisory authority in a routine manner by Dutton, who was never informed that he
had more than such routine authority , is not sufficient to make an employee a supervisor
within the meaning of the Act I find no merit in Respondent Union's contention regarding
Dutton.
BALTIMORE PAINT AND CHEMICAL CORPORATION 87
such period. Backpay shall be computed in accordance with the Board policy set
forth in F. W. Woolworth Company, 90 NLRB 289.
Upon the foregoing findings of fact and upon the entire record in the case I make
the following:
CONCLUSIONS OF 'LAW
1. Millwrights and Machinery Erectors Local Union No. 2471, United Brotherhood
of Carpenters and Joiners of America, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By causing and attempting to cause Otis, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, to discriminate against appli-
cants for employment in violation of Section 8(a)(3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) of the Act.
4. 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.]
Baltimore Paint and Chemical Corporation and Warehouse Em-
ployees Union Local 570, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 5-CA-1914. January 9, 1962
DECISION AND ORDER
On October 25, 1961, Trial Examiner Louis Plost issued his Inter-
mediate Report herein, finding that the Respondent had engaged in
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 Re-
spondent filed exceptions to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and fords that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case, and
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as indicated below.'
^ The Respondent excepted to the refusal of the Trial Examiner to admit additional
evidence of Knott' s alleged derelictions in duty during the past few years. Evidence to
this effect is already in the record and the proffer of testimony by Traffic Manager Marsh
as to such matters, which the Trial Examiner rejected, would have been cumulative. In
coming to his conclusion, with which we agree, that Respondent discharged Knott because
of the assistance he gave to the Union in its organizational campaign, the Trial Examiner
did take into consideration Respondent's alleged dissatisfaction with his work before the
advent of the Union
2 We do not adopt the Trial Examiner's finding that Supervisor Rogers' taunting refer-
ences to Knott as a "union steward" were in violation of Section 8(a) (1). Furthermore,
for the reasons stated by the Trial Examiner in his Conclusions of Law, we shall order the
Respondent to cease and desist from violations of Section 8(a) (1), not only in the specific
instances found but also in any other manner
135 NLRB No. 14.