O. W. Burke Co.

National Labor Relations Board - Board Decisions

May 5, 1955

112 N.L.R.B. 592 (N.L.R.B. 1955)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Exclusions from the Requested Unit
The Petitioner seeks to exclude from the requested unit employees
listed in the categories of methods engineers, junior engineers, the
nurse, application engineers in the order service department, and the
traffic analyst. The methods engineers and junior engineers, although
concededly professional employees, are presently represented ill a
certified unit by a union whose contract would bar a representation
proceeding with respect to those categories. Accordingly, they will
be excluded from the unit.4 The next category listed by the Petitioner,
namely, the nurse, we shall exclude upon the ground that her interests
are dissimilar from those of the other professional employees in the
unit here sought.' As regards the application engineers in the order
service department together with the traffic analysts, it does not ap-
pear from the record that the employees in these categories are pro-
fessional employees; accordingly, they will be excluded from the unit.'
We find that all engineers in the engineering department known as
associate engineers, senior and fellow engineers; all engineers in the
new sales department known as application engineers I and II; all
engineers in the service sales department known as headquarters and
service engineers I and II; and works engineering design and layout
engineers at the Employer's Jersey City plant, New Jersey, excluding
method engineers, junior engineers, application engineers in the order
service department, traffic analysts, nurses, all other employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Direction of Election.
4 Anteican Cable and Radio Corporation , 101 NLRB 1 759, 1762
6 Standai d Oil Company/, sups a
9 Although under some ciretunstant es they might, as technical employees, be included in
a larger professional group ( see Standard Oil Company , supra ) no labor organization here
seeks their inclusion in what is otherwise a residual unit of professional engineers.
O. W. Burke Company and Loy Gittings
Local 25, International Association of Bridge , Structural and
Ornamental Iron Workers, AFL and Loy Gittings. Cases Nos.
7-CA-10644 and 7-CB-192. May .5,1955
DECISION AND ORDER
On December 27, 1954, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
112 NLRB No 46.
O. W. BURKE COMPANY 593
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report,
and the Respondents filed supporting briefs.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as noted below.'
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
1. The Respondent Company, O. W. Burke Company, and its offi-
cers, agents, successors, and assigns, shall
a. Cease and desist from :
(1) Encouraging membership in the Respondent Union, Local 25,
International Association of Bridge, Structural and Ornamental Iron
Workers, AFL, or any other labor organization of its employees, by
discharging, suspending, or laying off any of its employees, or by re-
fusing employment to qualified applicants, because of their nonmem-
bership in, or their failure to obtain work referrals or clearances from,
their labor organizations, or by discriminating against them in any
other manner in regard to their hire or tenure of employment or any
term or condition of their employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
(2) In any other manner interfering with, restraining, or coercing
its employees, or applicants for employment, 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 la-
bor organization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
'As is customary in violations of the type involved here, we shall provide that the
Respondent Union notify Loy Gittings and the Respondent Employer that it has no objec-
tion to Gittings ' employment Further, inasmuch as two separate instances of discrim-
ination are involved , vi:, December 29, 1953, and March 22, 1954 , we shall modify the
Trial Examiner 's recommendation that the back-pay period extend "from December 29. 1953,
until he would have been laid off absent unfair labor practices " to provide that the
Respondents make whole Loy Gittings for any loss of pay he may have suffered by reason
of the discrimination against hint on the two dates involved.
.594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Jointly and severally with Respondent Union make whole Loy
Gittings for any loss of pay suffered as a result of the discrimination
against him in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," as amended herein.
(2) Upon request, make available to the Board, or its agents, for ex-
amination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due.
(3) Post at its principal place of business copies of the notice at-
tached hereto marked "Appendix A." 2 Copies of such notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by the Company immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent Company to insure that said notices are not altered, defaced, or
,covered by any other material.
(4) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
2. The Respondent Union, Local 25, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL, and its offi-
cers, representatives, agents, successors, and assib s, shall :
a. Cease and desist from :
(1) Causing or attempting to cause the Respondent, O. W. Burke
'Company, its officers, agents, successors, and assigns, to discharge, sus-
pend, lay off, or in any other manner discriminate against its em-
ployees or applicants for employment in violation of Section 8 (a) (3)
,of the Act.
(2) In any other manner restraining or coercing employees of, or
applicants for employment with the Respondent, O. W. Burke Com-
pany, its successors or assigns, 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 organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3)
,of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Notify Loy Gittings and the Respondent O. W. Burke Com-
pany, immediately in writing, that it does not object to Loy Gittings'
,employment.
2In the event that this Order is enforced by 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."
0. W. BURKE COMPANY 595
(2) Jointly and severally with Respondent Company, make whole
Loy Gittings for any loss of pay suffered by reason of the discrimina-
tion against him in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," as amended herein.
(3) Post at its business office and meeting hall in Detroit, Michigan,
copies of the notice attached hereto as "Appendix B." I Copies of said
notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being duly signed by an official representative of
the Respondent Union, be posted by the Respondent Union immedi-
ately upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to its members are customarily posted. Reason-
able steps shall be taken by the Respondent Union to insure that said
notices are not altered, defaced, or covered by any other material.
(4) Mail to the Regional Director for the Seventh Region signed
copies of the notice attached hereto marked "Appendix B," for post-
ing, if the Respondent Company is willing, at the Company's place of
business in Detroit, Michigan, in places where notices to employees are
customarily posted.
(5) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent Union has taken to comply herewith.
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
3 In the event that this Order is enforced by 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 "
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
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 employees and appli-
cants for employment that :
WE WILL NOT encourage membership in Local 25, International
Association of Bridge, Structural and Ornamental Iron Workers,
AFL, or in any other labor organization of our employees, by
discharging, suspending, or laying off any of our employees or by
refusing employment to qualified applicants because of their non-
membership in, or their failure to obtain a work permit or a clear-
ance from that labor organization, or by discriminating against
them in any other manner in regard to their hire or tenure of em-
369028-50-vol. 112-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, or any terms or conditions of employment , except to
the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment , in the exer-
cise of the rights guaranteed in Section 7 of the Act, except that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL make Loy Gittings whole for any loss of pay he may
have suffered by reason of the discrimination against him.
All our employees are free to become, remain , or to refrain from be-
coming, or remaining , members of the above-named Union or any
other labor organization , except to the extent that this right may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
O. W. BURKE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered , defaced, or covered by any other
material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 25, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, AND TO
ALL EMPLOYEES OF O. W. BURKE COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause O. W. Burke Company,
its officers, agents , successors , or assigns, to discharge, suspend,
lay off, or in any other manner to discriminate against employees
or applicants for employment because of their nonmembership in,
or their failure to obtain a work permit or clearance from our or-
ganization, except as authorized by Section 8 (a) (3) of the Act.
WAVE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, O. W. Burke Company, its
successors or assigns , in the exercise of the rights guaranteed by
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8
(a) (3) of theAct.
0. W. BURKE COMPANY 597
IVE WILL notify 0.117. Burke Company that we have no objection
to the hiring or employment of Loy Gittings, or any other person
without being a member of, or being hired pursuant to permit is-
sued by, our organization.
WE WILL notify Loy Gittings that we have no objection to his
employment by 0. W. Burke Company.
W`TE WILL make Loy Gittings whole for any loss of pay suffered
because of the discrimination against him.
LOCAL 25, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON
WORKERS, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended, 61 Stat. 136 (herein called the Act), was heard in Detroit, Michigan,
on October 26 and 27, 1954, pursuant to an order of consolidation and due notice to
all parties.' The complaint in Case No. 7-CA-1064 alleged that the Respondent
Employer, in violation of Section 8 (a) (1) and (3) of the Act, had terminated or
refused to continue the employment of Loy Gittings because he had neither a work-
ing permit nor a clearance from Local 25 and that since about December 15, 1953, it
has required membership in, or clearance from, the Union as a condition of employ-
ment in an ironworker's job. The complaint in Case No. 7-CB-192 alleged that Local
25, in violation of Section 8 (b) (1) (A) and (2) of the Act, caused the Company
to terminate Gittings' employment. In its answer, the Company conceded certain facts
with respect to its business operations 2 but denied the commission of any unfair labor
practices. The Union, in its answer, admitted that it had caused the Company to: (1)
Refuse to continue the employment of Gittings; (2) prefer members of and holders of
permits from Local 25; and (3) terminate the employment of those engaged in iron-
workers' jobs who had failed to pay dues and initiation fees. At the same time the Re-
spondent Union denied that it had violated the Act.
The General Counsel, the Company, and Local 25 were represented at the hearing
by their attorneys. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce all evidence pertinent to the issues was afforded all parties.
At the conclusion of the General Counsel's case, the Company moved to dismiss the
complaint. This. motion was denied. At the conclusion of the hearing this motion
was renewed and ruling was reserved thereon. It is now denied. The parties waived
oral argument. Subsequent to the hearing a brief was received from the Respondent
Company.
'The General Counsel and the staff attorney appearing for him at the healing are
referred to herein as the General Counsel and the National Labor Relations Boaid as the
Board , the above-named Company is referred to as the Respondent Employer and the
Respondent Union as Local 25 or the Iron Workei s
2 This concession Naas l imited to the instant case and was without waiver of, or prejudice
to, the Respondent Employei s position in any pioceedings subsequently instituted before
the Board
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
O. W. Burke Company , a Michigan corporation , having its principal office and
place of business in Detroit , is engaged as a general contractor in commercial and
industrial construction . Its annual purchases of materials such as lumber, steel,
mortar, bricks , cement, and gravel exceed $ 1,000,000, of which in excess of $500,000
in value are received by the Company at its Michigan construction sites directly from
points located outside the State. Annually , the Company provides goods and services
valued in excess of $200,000 for concerns , each of which annually ships goods valued
in excess of $50,000 to points located outside of the State in which said concerns are
located. On the foregoing facts,3 the Respondent Company concedes , and I find,
that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 25 is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
It was stipulated by the parties that at no period relevant to the issues herein did
the Company and Local 25 have a collective -bargaining agreement . On the other
hand, Stephen D. Butts, engineer and project manager for the Respondent Employer,
testified that the Company regularly made voluntary payments to an insurance fund
maintained by Local 25, the amount of such payments being based upon the number
of hours worked by its employees assigned to structural ironwork.
Over a period of years, Loy Glttings , the Charging Party in both cases, had been
a member of several different locals of the International Association of Bridge,
Structural and Ornamental Iron Workers. Several months prior to the period
relevant to the matters now in issue , Gittings had been suspended by a local union
of the aforesaid association in Casper , Wyoming.
On about December 9, 1953, and upon payment of $2, Gittings received a tem-
porary work permit from Local 25, issued over the signature of T. Pasell, its business
agent. After a union referral to one employer proved fruitless because no work was
available, on about December 17, Gittings and one Donald Rasmussen went to the
union hall and there , following a conversation with Harry Brittingham , assistant
business agent, the latter gave them work referrals to the O. W. Burke Company.
Gittings and Rasmussen reported to the Burke construction site where the timekeeper
signed them up and told them to report to Foreman Eugene Moss . After they had
done so, Moss told them to "check in" 4 with the Iron Workers' steward . According
to Gittings , when he and Rasmussen went to the steward, the latter looked at their
permits and made some notation in his own records .5 The two men then returned
to the foreman who assigned them jobs.
The permit which Gittings received from Local 25 expired on December 24. On
the morning of December 29, Rasmussen , who had become the union steward the
preceding week,6 checked Gittings ' permit, told him that it would have to be renewed
and that he would be unable to work until that was done .? According to Gittings, he
then contacted Moss, and after telling him what Rasmussen had said, the foreman
stated that the steward was correct and that Gittings could not work until the permit
was renewed . The employee then left the job site and went to the headquarters of
Local 25 where the secretary to the business agent told him that his permit would
not be renewed until Local 25 received the membership book Gittings had held while
affiliated with the local in Wyoming . According to Gittings , he then returned to the
3 To which the Company agreed for the purposes of this case
4 This quotation is from Moss ' testimony.
6 Moss conceded that he told Glttings to see the steward and explained that this was a
customary practice which was designed only to enable the steward to keep an accurate
record of the hours each man worked and thus check on the accuracy of the employer's
contribution to the union insurance fund
° Rasmussen was a member of Local 25.
9 The foregoing finding is based on the credited testimony of Gittings Rasmussen testi-
fied that lie told Gittings lie would have to get Local 25 to renew the permit but became
very evasive and noncommittal in his responses ishen asked whether lie had said anything
about what the consequences of nonrenewal isould be
0. W. BURKE COMPANY 599
job, and, upon informing Moss the Union would not renew his permit, was told by
the foreman that he could not go back to work until he was "fixed up" 8 with Local
25. Gittings then departed.
Early in January 1954 , in a conversation with Brittingham , the assistant business
agent advised Gittings to have the local in Wyoming send him a telegram setting forth
Gittings ' standing . The latter did so and received a response which he brought to the
union hall later in the month. He was then told, however, that no work was available.
Thereafter Gittings left the Detroit area and did not return until March. On about
March 12 he saw Brittingham at the hall and obtained a work referral to a job which
lasted slightly over a day . On March 14 , the assistant business agent referred him to
another job that lasted 3 days . On March 22 , Gittings again visited the union hall.
Brittingham told him that the Burke Company had requested that he send them six
men that morning . According to Gittings , Brittingham at first promised to send him
out on this request but then reconsidered and refused to do so.
Gittings testified that he then went directly to the Burke job site and there, after
seeking out Moss and asking whether he could go back to work , the foreman told
him that it would not be possible until he had obtained union clearance . Gittings
then went to the Regional Office of the Board to inquire as to his rights in the matter
and it was suggested that he apply for reemployment . As a result , Gittings returned
to the job site that afternoon , again sought out Moss, and once more asked if there
would be any chance for him to go to work. Acording to Gittings , Moss replied "No,
not until your union slip is back." Gittings then left the scene and subsequently filed
the charges on which the complaints in these cases are based.
Moss, when called as a witness for Respondent Company, testified that on Decem-
ber 29 Gittings asked if he could get paid that morning so that he could "straighten
up [his] union dues ," that the employee 's request was granted and that after Gittings
left the job, presumably on his way to the payroll office, he never returned to work.
Moss testified that he did not see Gittings again until the afternoon of March 22. As
the foreman described this occasion ,9 after greeting the man and asking him if he was
coming back to work, Gittings replied in the negative and explained that he had only
come out to pick up his overalls. Moss testified that on December 29 and after Git-
tings had left the job , Rasmussen , the union steward, told him that he had sent Git-
tings to the union hall "to get his permit straightened out." He denied ever having
seen Gittings ' permit or having questioned him as to his union standing . He further
denied ever having told Gittings that he would have to be in good standing with Local
25 to continue on the job or that a union permit was a requisite to reemployment.
Moss testified that he had no complaints about Gittings ' work and that both on De-
cember 29 and on March 22 he was in need of ironworkers . According to Moss, on
the latter date he had telephoned Brittingham to ask for 6 men and that Local 25 only
sent out 5 , including 1 apprentice . In this respect Moss' testimony corroborates Git-
ings' account of what Brittingham told him on the same day.
At the time of the hearing Mr. Moss had been with the Burke Company since 1926,
had been superintendent and foreman of ironwork for many years, and, as such,
hired all the ironworkers . 10 He testified that the Company had never advertised for
such craftsmen and that it was customary to call Local 25 when men were needed
because "that is the only place that I know that a fellow can get ironworkers." It is
also customary that when new employees first report for work on the job site they
are paid from the time they leave the hall of Local 25. Moss further testified that
. . in all my experience I don't think I have had half a dozen iron workers come
to me on a job and ask for work." The superintendent is an active member of Local
25 and has been for many years. By way of explanation he stated that "if they took
my card . . . they would take my bread and butter away from me."
It is the duty of the Trial Examiner to resolve the sharp conflicts between the testi-
mony of Moss and Gittings In his brief , counsel for the Company assails the credi-
bility of Gittings as being confused , self-contradictory , and incredible . He further
argues that the explanation for Gittings ' unemployment is to be found in the em-
ployee's apparent penchant for transient drifting and irresponsibility rather than in
unlawful conduct on Moss' part . It is true Gittings did not appear to have a record
for employment stability . On the other hand, Moss frankly stated that he had no
complaints about the man's work while on the job. Moreover , in determining the
credibility issues here involved it is necessary to consider not only Gittings ' self-in-
8 This quotation is from the testimony of Gittings
9 According to the testimony of both men, this meeting took place on the 14th story level
of one of the apartment house units then under construction
19 Mr. Butts testified that the hit nog of all those employed in that craft was entrusted
entirely to Moss.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terest in testifying as he did, but also that of Moss who, though an agent for the
Respondent Employer, very obviously had a deep, abiding, and understandable loy-
alty to the Union of which he had been a lifelong member. On the material points in
issue Gittings' testimony was neither self-contradictory nor inconsistent. Conse-
quently, based upon my observation of these witnesses on the stand and the appar-
ent reliability there displayed, it is my conclusion that Gittings is the more credible
with respect to the incidents on the 2 days in question. It is, therefore, my conclu-
sion, and I find that on December 29 Moss told the employee that he would not be
reemployed until he was in good standing with Local 25 and that on two occasions on
March 22 Moss reiterated that Gittings would not be rehired until he had a permit
from the Respondent Union.
Concluding Findings
Although these cases were consolidated for hearing, as counsel for the Respondent
Company states, correctly, in his brief, the evidence as to each Respondent must be
considered separately. Insofar as Case No. 7-CA-1064 is concerned, I have found
that on December 29 Gittings told Foreman Moss that he had been unable to get his
work permit renewed at the hall of Local 25 and that the latter then informed Gittings
he could not work until he had settled his difficulties with the Union. I have also
found that on two occasions on March 22 the foreman reiterated this position. It was
conceded that Moss did all the hiring of ironworker personnel. It was likewise con-
ceded that there was no collective-bargaining agreement in force between the Com-
pany and Local 25. As a result, the Company was not free to require membership in
the Iron Workers, or a work permit or a clearance from that Union as a prerequisite
to employment. That, however, was the net effect of Moss' action. By so doing, at
a time when no lawful contractual obligation for such action existed, the Company's
foreman permitted a labor organization to determine who would be hired. It is well
established, and I find, that by engaging in such a course of conduct the Respondent
Employer violated Section 8 (a) (1) and (3) of the Act. Grove Shepherd Wilson
f Kruge, Inc, et al., 109 NLRB 209; American Pipe and Steel Corp., 93 NLRB 54,
55-57; Engineers Limited Pipeline Company, 95 NLRB 176, 177.
As noted earlier, in its answer the Respondent Union conceded that it had caused
the Company to terminate Gittings' employment and that it had done so because
Gittings, as a suspended member of other locals affiliated with the International Asso-
ciation of Ironworkers, was no longer in good standing. Local 25 called only one
witness, Mr. James Jenkins, presently its financial secretary and business representa-
tive, whose testimony related solely to a communication from the International As-
sociation on Gittings' record as a union member. Jenkins was not elected to his
office until August 1954, and concededly had no personal knowledge of any of the
incidents involved in Gittings' difficulties with Local 25. From the answer filed by
the Respondent Union and from the position it took at the hearing it apparently as-
sumed that no violation could be proved under Section 8 (b) (2) and (1) (A) of
the Act if the Charging Party involved had lost his good standing in a union through
failure to pay such dues and initiation fees as are uniformly required of all members.
Such a defense ignores completely the fact that the Act permits a union to cause the
termination of an employee for such reasons only in the event there is in force a col-
lective-bargaining agreement that conforms to the requirements of Section 8 (a) (3).
Byers Transportation Company, Inc, 94 NLRB 1494, 1495, enfd. sub nom.
N. L. R. B. v. Radio Officers, et al., 347 U. S. 17; Operative Plasterers' and Cement
Finishers' International Association, Local 555, AFL, 110 NLRB 463; cf. South
Texas Chapter, Associated General Contractors of America, Inc., 107 NLRB 965.
Here the parties stipulated that there was no such agreement between Local 25
and the Respondent Company. Under these circumstances and in view of the
credible evidence in the record as well as the admissions of the Respondent Union,
I conclude and find that Gittings' termination by, and failure to secure reemploy-
ment with, the Company resulted from his failure to obtain a renewal of his work
permit from Local 25 and the latter's objections to his continuance on the job. By
such conduct, Local 25 engaged in unfair labor practices within the meaning of
Section 8 (b) (2) and 8 (b) (1) (A) of the Act. I so find. Consolidated Western
Steel Corp., 94 NLRB 1590, 1593; N. L. R. B. v. Local 57, Operating Engineers, 201
F. 2d 771, 773-775 (C. A. 1); Jarka Corporation, 94 NLRB 320, 322-323, enfd. 198
F. 2d 618 (C. A. 3).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
SOUTHEASTERN MOTOR TRUCK LINES, INC. 601
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 the Respondents have violated the Act, I shall recommend that
they cease and desist therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act. I shall thus recommend, among other things, that the
Respondents, jointly and severally, make Loy Gittings whole for any loss of pay suf-
fered by reason of the discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned from December 29, 1953,
until he would have been laid off absent unfair labor practices, less his net earnings
during this period Back pay shall be computed in accordance with the formula stated
in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
Upon these findings of fact, and upon the entire record in the case, I make the fol-
lowing conclusions of law •
1. The Respondent Company is engaged in commerce and business activities which
affect commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 25, International Association of Bridge, Structural and Ornamental Iron
Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. By its interference with, restraint, and coercion of its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and continues to engage in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
4. By its acceptance of the Respondent Union's determination as to the identity of
those who should be permitted to work for it, in the absence of any lawful contractual
obligation to accept such a determination, the Respondent Company has engaged in
and has continued to engage in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
5. By attempting to cause, and causing, the Respondent Company to discriminate
against Loy Gittings, and thus to commit an unfair labor practice within the mean-
ing of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and has
continued to engage in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
6. By its restraint and coercion of employees in the exercise of certain rights guar-
anteed in Section 7 of the Act, the Respondent Union has engaged in and has con-
tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
7. These unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Southeastern Motor Truck Lines , Inc. and Teamsters , Chauffeurs,
Helpers and Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL, Petitioner . Case No. 10-RC-2769.
May 5,1955
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On May 20, 1954, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Tenth Re-
gion, among the employees in the unit herein found appropriate. At
112 NLRB No 78.