Revere Metal Art Co., Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1959

123 N.L.R.B. 114 (N.L.R.B. 1959)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by unilaterally setting higher rates of pay for those hired to replace its employees
who were on strike, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (5) and (1) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The Teamsters and the Machinists have, and their agents have, engaged in
unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act by
inducing and encouraging employees of Hart Motor Express and Associated Trans-
port34 to engage in strikes or concerted refusals in the course of their employ-
ment to perform services for their respective employers, an object thereof being
to force or require such employers to cease doing business with W. W. Wallwork
Fargo, Inc.
7. 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.]
B The complaint also alleged that the Union s unlawfully induced the employees of
K. W. McKee, Inc ., not to handle Wallwork freight. However , the General Counsel
failed to offer any evidence in support of this allegation.
Revere Metal Art Co., Inc. and Isabelo Rodriguez
Amalgamated Union, Local 5, UAW, Independent and Isabelo
Rodriguez. Cases Nos. 2-CA-5330 and 2-CB-1932. March 10,
1959
DECISION AND ORDER
On October 30, 1958, Trial Examiner Max M. Goldman issued
his Intermediate Report in the above-entitled consolidated proceed-
ing findings that Revere Metal Art Co., Inc., the Respondent
Company, and Amalgamated Union, Local 5, UAW, Independent,
the Respondent Union, had engaged in and were engaging in
certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Union filed exceptions to the Inter-
mediate Report. No exceptions were filed by the Respondent Com-
pany.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its powers in connection with this case to a
three-member panel [Chairman Leedom and Members Bean and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, and the entire record in the
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
1 The Respondent Union's request for oral argument is hereby denied because the record
and exceptions adequately present the issues and positions of the parties.
123 NLRB No. 16.
REVERE METAL ART CO., INC.
ORDER
115
Upon the entire record in these cases and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that :
A. The Respondent Company, Revere Metal Art Co., Inc., New
York City, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, maintaining, renewing, or enforcing any
agreement with the Respondent Amalgamated Union, Local 5 UAW,
Independent, which provides for obligations to the Union on the
part of employees other than the payment of initiation fees ancy
dues, or which requires its employees to join, or maintain their-
membership in, such labor organization, as a condition of employ-
ment, unless such agreement has been authorized as provided in
Section 8 (a) (3) of the Act.
(b) Recognizing and dealing with said Local, or any successor
thereto, as the collective-bargaining representative of any of its
employees for the purpose of dealing with the Company concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until Local
5 shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among the employees
of the said Respondent Company.
(c) Performing or giving effect to its agreement of November
13, 1956, with said Local 5, or to any modification, extension, supple-
ment, or renewal thereof, or to any other contract, agreement, or
understanding entered into with Local 5 relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until Amalgamated Union,
Local 5, UAW, Independent, shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted elec-
tion among the employees of said Respondent Company, provided,
however, that nothing herein shall be construed to require the
Company to vary any substantive provisions of such agreement
or to prejudice the assertion by the employees of any rights which
they may have thereunder.
(d) Soliciting checkoff authorizations for, or membership in
the said Local by threats or otherwise, or in any like or related
manner interfering with, restraining, or coercing its employees in
the exercise of their rights to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 :
(a) Withdraw and withhold all recognition from Amalgamated
Union, Local 5, UAW, Independent, as the representative of any
of its employees for the purpose of dealing with the Company con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or any other condition of employment, unless and
until said Local shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election among
the Respondent Company's employees.
(b) Jointly and severally with the said Local reimburse its em-
ployees for any initiation fees, dues, or other moneys paid or checked
off as a condition of employment pursuant to the agreement of
November 13, 1956, or any extension, renewal, modification, or sup-
plements thereof, or any agreement superseding it.
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all records and reports neces-
sary to analyze the amount of moneys due under the terms of this
Order.
(d) Post at its plant, in New York City, copies of the notice
attached hereto marked "Appendix A." 2 Copies of said notice, to
be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Company, be posted by it
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason=
able steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Post at the same places and under the same conditions as
set forth in (d) above, and as soon as they are forwarded by the
Regional Director, copies of the Respondent Union's notice herein
marked "Appendix B."
(f) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order what steps the
Respondent Company has taken to comply herewith.
B. The Respondent Union, Amalgamated Union, Local 5, UAW,
Independent, New York City, its officers, representatives, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Entering into, maintaining, renewing, or enforcing any
agreement with the Company which provides for obligations to the
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
REVERE METAL ART CO., INC. 117
Union on the part of employees other than the payment of initia-
tion fees and dues as a condition of employment , or which grants
the Union exclusive recognition , or which requires employees to
join, or maintain their membership in the Union as a condition
of employment, unless such agreement which grants exclusive recog-
nition or requires membership has been authorized as provided in
Section 8 (a) (3) of the Act.
(b) Acting as the exclusive bargaining representative of any of
the employees of Respondent Revere Metal Art Co., Inc., for the
purpose of dealing with said Company concerning grievances, labor
disputes , wages, rates of pay, hours of employment , or other condi-
tions of employment unless and until said Union shall have demon-
strated its exclusive majority representative status pursuant to a
Board -conducted election among the Company 's employees.
(c) In any like or related manner causing or attempting to cause
the Company to discriminate against any employee in violation of
Section 8(a) (3) of the Act.
(d) In any like or related manner restraining or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action :
(a) Jointly and severally with the Company reimburse the Com-
pany's employees for any initiation fees, dues , or other moneys
paid or checked off as a condition of employment pursuant to the
agreement of November 13, 1956, or any extension , renewal, modi-
fication, or supplements thereof, or any agreement superseding it.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records necessary to
analyze the amounts of moneys due under the terms of this Order.
(c) Post at its offices and meeting halls in New York City, copies
of the notice attached hereto marked "Appendix B ." 3 Copies of
said notice , to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Union's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that said notices are
not altered , defaced, or covered by any other material.
(d) Mail to the said Regional Director signed copies of Appendix
B for posting by the Company at its New York City plant, as
provided above herein . Copies of said notice to be furnished by
the Regional Director, shall, after being signed by the Respondent
Union's representative , be forthwith returned to the Regional Direc-
tor for disposition by him.
8 See footnote 2.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the said Regional Director in writing, within 10 days
from the date of this Order, what steps the Respondent Union
has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 that :
WE WILL NOT enter into, maintain, renew, or enforce any
agreement with Amalgamated Union, Local 5, UAW, Indepen-
dent, which requires our employees to join, or maintain their
membership in, such labor organization as a condition of em-
ployment unless such agreement has been authorized as provided
by the Labor Management Relations Act.
WE WILL withdraw and withhold recognition from the above-
named labor organization as the representative of any of our
employees for the purpose of dealing with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until the above-
named labor organization shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted
election among our employees.
WE WILL NOT perform or give effect to our agreement of
November 13, 1956, with said Local 5, or to any modification,
extension, supplement, or renewal thereof, or to any other con-
tract, agreement, or understanding entered into with Local 5
relating to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, unless and
until Amalgamated Union, Local 5, UAW, Independent, shall
have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among our employees,
provided, however, that nothing herein shall be construed to re-
quire us to vary any substantive provisions of such agreement or
to prejudice the assertion by our employees of any rights which
they may have thereunder.
WE WILL NOT solicit checkoff authorizations for, or member-
ship in said Local by threats or otherwise, or in any like or
related manner interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
REVERE METAL ART CO., INC. 119
refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act.
WE WILL jointly and severally with the above-named labor
organization reimburse our employees for initiation fees, dues,
or other moneys paid or checked off as a condition of employ-
ment pursuant to the agreement of November 13, 1956, or any
extension, renewal, modification, or supplements thereof, or
any agreement superseding it.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization except
to the extent that this right may be affected by an agreement in
conformity with Section 8(a) (3) of the Act.
REVERE METAL ART CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Isabelo Rodriguez, an individual, herein called the
Charging Party, the General Counsel by the Regional Director for the Second
Region (New York, New York), of the National Labor Relations Board, herein
called the Board, issued his complaint dated December 26, 1957, against the Re-
spondents, Revere Metal Art Co., Inc., herein referred to as the Company, and
Amalgamated Union, Local 5, UAW, Independent, herein referred to as the
Union, alleging that the Respondents respectively violated Section 8(a)(1), (2),
and (3), and Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the
Act. Copies of the charges, an order consolidating the cases, the complaint, and
notice of hearing were duly served upon the Respondents and the Charging Party.
The Respondents' respective answers deny the commission of unfair labor practices.
Pursuant to notice a hearing was held before the Trial Examiner on various
days between February 3 and 28, and on October 9, 1958, at New York City.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded the parties. The parties
presented oral argument at the closing of the hearing. The Union and the Gen-
-eral Counsel filed memoranda.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation, maintains its principal office and place
of business in the City of New York where it is engaged in the manufacture, sale,
and distribution of pen parts. During the past year the Company manufactured
and sold products valued in excess of $800,000, of which products valued in
excess of 50,000, were shipped from its plant to points outside the United States.
It is found that the Company is engaged in commerce within the meaning of the
Act.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If. THE LABOR ORGANIZATION INVOLVED
Amalgamated Union, Local 5, UAW, Independent, is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
In about June or July 1956, the Union began an organizing campaign among
the Company's employees. These activities were conducted under the direction
of Benjamin Ross, general manager and secretary-treasurer of the Union, by,
among others, Sam Vogel, then an organizer and business representative, and Saul
Yellin, president. Various of these representatives daily sought to interest em-
ployees in joining the Union by talking to them as they entered and left the
plant on the three shifts operated by the Company. The Union also engaged in
organizational picketing.
By August the organizing campaign had adversely affected production. John
A. Bruno, then general foreman of the plant conducted a poll among some of the
employees to determine union interest. In about the middle of August employee
Manuel Colon was discharged, and the Union filed a charge alleging discrimina-
tion. For about 2 weeks, beginning in about the middle of August, Colon joined
the picket line which then declared the Company to be unfair. During this latter
period of picketing, the Company was cut off from coolants and lubricants essen-
tial to the operation of its machinery and production was further adversely affected.
There was also in this period a cessation of its garbage removal service and
shipments to and from the plant stopped. At this time customers came to the
plant to pick up finished products. At the suggestion of one of these customers,
Harry Kason, president of the Company, near the end of August consulted with
counsel about this matter for the first time and arranged to have counsel conduct
negotiations with the Union. About August 28, the Company and Union arranged
a meeting for September 10. Negotiations began after Colon was returned to
work and the picketing ceased.
Kason testified that about the end of August, when he had arranged to have
counsel conduct the negotiations with the Union, he had assumed or had come to
believe that the Union represented a majority of the employees and that he had
then recognized the Union. On various occasions during the course of picketing
which had preceded recognition, according to Kason, Yellin or Vogel "shuffled,"
"flashed" or "flipped" cards in his presence the first few of which bore the names
of persons Kason recognized as the Company's employees and he assumed that
the other cards also bore the names of employees.' Kason further testified that
he assumed that the signatures were bona fide, but did not check the Company's
records to determine whether this was so, that there had been some 27 to 29
cards so shown him, and that he had assumed relying on his estimate of the
number of employees in the unit and from information supplied him by Bruno,
that the number of cards involved represented a majority. Kason explained that
he had also been influenced in his assumption that the Union represented a
majority by the slowdowns and cessations in production. There was no claim to
representation by a rival organization.
For the week ending September 1, the Company had in its employ 58 persons
in the unit bargained for with the Union. At the hearing Vogel identified the
signatures on 14 cards which he had obtained which were dated prior to September
1. Of those in the Company's employ for the week ending September 1, the
exhibit file also shows cards dated prior to September 1 bearing the names of
four additional employees whose signatures were not identified.
There were meetings between the Company and the Union on various dates
between September 10 and November 13, when a contract was executed. Early
in the exchange of proposed contracts the Company proposed a provision under
which the contract would be inapplicable to those who had been employed by
the Company 3 months or more and who refused to sign a checkoff card, until the
1 According to Vogel, it was not until the picket line was removed that he first "flashed"
the cards to Kason. Yellin's testimony is not entirely clear as to when, if at all, Yellin
first permitted Kason to see the cards in the same or in a similar manner.
REVERE METAL ART CO., INC. 121
Union filed with the Company checkoff cards executed by at least 50 percent of
the employees.2
Sometime in the fall after negotiations had started, Vogel appeared at the plant
with cards to sign up employees and was stopped by Bruno at the doorway.
Bruno persuaded Vogel to leave the cards with him so as not to interrupt the
employees at work, and then Bruno reported this incident to Kason. About a
week later both Yellin and Vogel appeared at the plant and gave Bruno another
quantity of cards which were to be signed by the employees. By the next day
Bruno had also discussed this incident with Kason. Kason told Bruno to have
the cards signed but not to turn them over to the union organizers.3 About a
week later Vogel came to the plant to obtain the cards and Bruno informed him
that they had not as yet been signed. Bruno also told Vogel that he intended to
go into business for himself and that in the event he was not there when Vogel
returned he, Bruno, would leave the cards in his desk.
On October 24, in accordance with Kason's instructions Bruno obtained signa-
tures to 24 union cards from among the employees at the plant. About one-third
of these empoyees had by then signed cards earier in the Union's campaign at
Vogel's behest. In the course of the interviews with the employees at least in
one instance Bruno threatened an employee with discharge if he did not sign a
card. Bruno left the Company's employ around November 1. After Bruno had
left Vogel removed the signed cards from Bruno's desk and took them to the
Union's office. There are three additional cards in the exhibit file, one is dated
October 5, and two are dated October 24, showing the names of persons then
in the Company's employ and whose signatures were not identified.
During the course of negotiations proposed contracts were exchanged between
the Company and the Union and no agreement was reached until November 13.
At a conference in the latter part of October the Union insisted it represented a
majority of the employees and the Company asked that the cards be shown to
Kason. At the end of October Yellin showed the cards to Kason at Kason's office.
Kason did not then or at any other time check the writing appearing on the
:signature line of the cards against the Company's records to determine au-
thenticity of the signatures.
The contract of November 13 which granted exclusive recognition to the Union
contains, among others, the following provisions which require membership in
"good standing" in accordance with the Union's rules as a condition of em-
ployment:
Article II, Section 1
All employees in the bargaining unit or units, presently employed, shall be-
come members of the Union thirty (30) days after the date of this agree-
ment and all new employees in the bargaining unit or units shall become
members of the Union thirty (30) days after the date of their employment
and shall thereafter continue to remain members of the Union in good stand-
ing for the duration of this contract, as a condition of employment.
Article III, Section 3
Newly hired employees shall be hired from any source available to the
Employer, on a trial basis of one (1) month, subject to discharge by the
Employer within this period, for any reason whatsoever. If employment is
continued beyond this trial period, then each newly hired employee shall
forthwith make application to the Union in accordance with Union regula-
tions existing at the time, for membership in the Union, and shall remain
in good standing in the Union in accordance with the Union rules and regu-
lations for the duration of this agreement.
2 The text of the proposed provision, article 1, section 2, follows :
This agreement shall not apply to any employees of the Employer who have been
employed for a period of three (3) months or longer prior to the date of the execu-
tion of this contract who refused to join the Union or who refused to sign authoriza-
tion permitting deductions from their salaries for the purpose of paying Union dues
and/or assessments until the Union files with the Employer written authorizations
for deductions from at least 50% of the employees of the Employer.
3 This finding is based upon Bruno's testimony. Kasen denied having authorized super-
visors to obtain union authorization cards from employees between October 1 and Novem-
ber 13, 1956. Upon the basis of the demeanor of the witnesses this denial is not credited.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article VIII, Section 1
Upon the request of the Union, the Employer shall promptly discharge any
employee who is not in good standing with the Union.
The constitution and bylaws of the Union contain as a requirement for becoming
and/or remaining a member in good standing, duties and obligations other than
the payment of initiation fees and dues. For example, under articles 11, 14, and
15, of this document, fines, and assessments may be levied by the executive board
on any member found guilty of violating the constitution, bylaws, or union rules,
such as by seeking redress against the Union in a court of law without first ex-
hausting his remedies under the constitution and bylaws. It appears further that
both fines and assessments are required to be paid before regular dues can be
accepted, and that there is a requirement that a member shall be suspended when
he owes dues for 3 months and be expelled when he owes dues for 6 months.4
After the contract was signed the Company engaged in additional acts of soli-
citation of membership for the Union. At Kason's instructions his secretary,
Josephine Gardner, who had been given blank membership and checkoff cards
by Yellin filled in such matters as the name and address for each of the em-
ployees and had them distributed among the employees by the foreman for signa-
ture. With some exceptions these cards were returned to the office. Gardner
called employees to the office whose cards were not returned and they then signed'
the cards. Kason, too, interviewed some employees who did not sign cards.
Kason explained to them that he would not want to lose them as employees and'
that they had to sign the cards under the union-security provisions of the contract.
Gardner thereafter returned the membership cards and a set of checkoff cards
to the Union and kept a set of checkoff cards for the Company. Dues were paid'.
by checkoff, but the employees did not pay initiation fees.
B. The conclusions
Essentially, the issue presented here is whether the Union represented an
uncoerced majority of the employees when the Company dealt with the Union.
as having a majority status. It appears from Union President Yellin's testimony
that the sole basis for the Union's claim to majority status is the cards produced
at the hearing. At the end of August, when the Company recognized the Union,
it was necessary for the Union to have valid cards from at least 30 of 58,
employees in the contract unit to attain a majority status. On November 13,
when the contract was executed, it was necessary for the Union to have valid:
cards from at least 29 of the 56 employees in the unit for the payroll week ending
November 17, to attain a majority status. Adding the cards dated prior to
September 1 bearing the names of 4 employees, whose signatures were not identi-
fied, to the 14 cards Vogel obtained, the maximum number of cards from among,
the Company's employees the Union could have had at the end of August is 18.
If the 3 cards which are dated in October bearing employees' names but whose
signatures were not identified were added, the total would be 21.5 It thus
appears that neither at the end of August nor on November 13, did the Union
possess sufficient valid cards to constitute a majority. In reaching this result on
the majority issue, the 24 cards dated October 24, have been excluded from con-
sideration as they were obtained by the solicitation of Bruno, the then general
foreman of the plant.
It is accordingly found that the Company violated Section 8(a)(1), (2), and
(3) of the Act by the following conduct: (1) dealing with the Union beginning
at about the end of September 1956, as the exclusive representative while the
Union did not have a majority status; (2) entering into a contract on November
4 This constitution became effective in November 1957. Prior thereto there was another
constitution in effect. It appears unnecessary in the circumstances to pass upon the pro-
visions of that document as well.
5 There are six additional cards in the exhibit file thus far not discussed. These cards.
like others which have been rescribed were not authenticated at the hearing. One of these
cards shows the same name as that of an employee whose signature Vogel had obtained
prior to September 1. Two cards dated prior to September 1 bear the names of persons
who left the Company's employ in or prior to the payroll period ending August 25. Two,
cards dated in October, bear the names of persons who were not employed by the Company
until December. The remaining card is undated and shows the name of a person who was
first employed by the Company in May 1957.
REVERE METAL ART CO., INC. 123
13, 1956, granting exclusive recognition to the Union while the Union did not
have a majority status; (3) providing in the contract of November 13, 1956, for
membership in the Union as a condition of employment while the Union did not
have a majority status; (4) effectuating this provision requiring membership in
the Union through the solicitation of employees for membership and checkoff
cards by Gardner and Kason, including Kason's threats of loss of employment;
and (5) solicitation by Bruno of employees for union cards including the use of a
threat of loss of employment. It is further found that the Company violated
Section 8(a)(1), (2), and (3) of the Act by providing as a condition of employ-
ment in the contract of November 13, 1956, for obligations to the Union on
the part of employees other than the payment of initiation fees and dues permitted
by the proviso to Section 8(a)(3).
It is found that the Union violated Section 8(b)(1)(A) and (2) of the Act
by the following conduct: (1) entering into a contract with the Company on
November 13, 1956, under which the Union was granted exclusive recognition
while the Union did not have a majority status; (2) providing in the contract
of November 13, for membership in the Union as a condition of employment
while the Union did not have a majority status; and (3) providing in the
contract of November 13, for obligations to the Union on the part of employees
other than the payment of initiation fees and dues as a condition of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondent Company described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it
will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found as set forth in the section entitled, "The conclusions," that
the Company violated Section 8(a)(1), (2), and (3), and that the Union
violated Section 8(b)(1)(A) and (2) of the Act, in that: the Company dealt
and contracted with the Union as the exclusive representative of its employees
although the Union did not represent a majority of its employees; the Company
and the Union by contract provided for obligations to the Union on the part of
employees other than the payment of initiation fees and dues as a condition
of employment; although the Union had not attained a majority status, the
Company and the Union by contract provided for membership in the Union as a
condition of employment and the Company effectuated this provision through
solicitation for membership and checkoff cards which included the use of threats
of loss of employment; and Bruno solicited employees to join the Union including
the use of a threat of loss of employment. Accordingly, it will be recommended
that the Company and the Union be ordered to cease and desist from this
conduct and to take certain affirmative action designed to effectuate the policies
of the Act including, a requirement that the Company withhold and withdraw
all recognition from the Union, unless and until the Union shall have demonstrated
its exclusive majority representative status pursuant to a Board-conducted election;
and an order that the Company cease giving effect to any contract between it and
the Union or any modification or extention thereof, but shall not by virtue of
this order be required to vary the wages, hours, or other terms and conditions of
employment which were established in performance of this agreement; and a
direction that the Company and the Union jointly and severally refund to the
employees all dues deducted by the Company pursuant to checkoff authorizations
for the benefit of the Union.6
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Union, Local 5, UAW , Independent , is a labor organization
within the meaning of the Act.
See, for example, Hibbard Dowel Company, 113 NLRB 28.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.
3. The Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
United Steelworkers of America , AFL-CIO [Boyles Bros. Drill-
ing Company] and International Hod Carriers and Common
Laborers Union, Local No. 16, AFL-CIO. Case No. 33-CC-51.
March 11, 1959
DECISION AND ORDER
On December 31, 1958, Trial Examiner James R. Hemingway
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On September 22, 1958, International Hod Carriers and Common Laborers
Union, Local No. 16, AFL-CIO, filed a charge against United Steelworkers of
America, AFL-CIO, herein called the Respondent, charging the Respondent with
violation of Section 8(b) (4) (A) of the Labor Management Relations Act, 61
Stat. 136, herein called the Act. On October 17, 1958, the General Counsel of
the National Labor Relations Board, herein respectively called General Counsel
and the Board, caused a complaint to issue against the Respondent. The
Respondent received notice of the filing of the charge on September 23, 1958,
and duly received copies of the charge, complaint, and notice of hearing.
In substance the complaint alleges that on about September 7, 1958, the
Respondent engaged in a labor dispute and strike with Boyles Bros. Drilling
Company, herein called Boyles, that Boyles was engaged in construction work
for Phillips Petroleum Company, herein called Phillips, and that, although the
123 NLRB No. 20.