Squirt Distributing Co.

National Labor Relations Board - Board Decisions

Jan 29, 1951

92 N.L.R.B. 1667 (N.L.R.B. 1951)

In the Matter of SQUIRT DISTRIBUTING COMPANY and GORDON J. Er-
WOOD, AN INDIVIDUAL
In the Matter of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL TEAM
STERS, CHAUFFEURS AND HELPERS, LOCAL 249, A. F. L. and GORDON
J. ELLWOOD, AN INDIVIDUAL
Oases Nos. 6-CA-256 and 6-CB-91.-Decided Januuary .9, 1951
DECISION AND ORDER
On August 25, 1950, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
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 General
Counsel and the Respondent Union filed exceptions to the Intermedi-
ate Report only with respect to the back pay aspects of the remedy.
The Respondent Squirt Distributing Company filed no exceptions.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and, the entire record in the case,
and except as noted below, hereby adopts the findings, conclusions,2
and recommendations of the Trial Examiner 3
The Remedy
For the reasons set forth in Acme Mattress Co., Inc.,4 91 NLRB
1010, we shall, unlike the Trial Examiner, require that the Em-
IPursuant 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 Houston , Reynolds,
and Styles].
8In the section of the Intermediate Report entitled Conclusions of Law, the Trial
Examiner inadvertently omitted the conclusion that the Employer violated Section 8
( a) (2) of the Act by assenting to an unlawful union -security clause since July 24, 1949.
3 We agree with the Examiner that the operations of the Respondent Employer affect
commerce . We find further that it would effectuate the policies of the Act to assert
jurisdiction in this case . Seven Up Bottling Company of Miami Inc., 92 NLRB 1622.
4 AIthough Member Reynolds dissented in that case , he considers himself bound by the
majority opinion therein.
92 NLRB No. 252.
1667
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,ployer and the Union be jointly and severally liable for loss of wages
incurred by Ellwood as a result of his second discharge as well as his
first discharge. We shall accordingly order that the Respondents,,
the Employer, and the Union, jointly and severally make Ellwood
whole for loss of wages incurred from January 23, 1950, the date.
of his first discharge, to February 9, 1950, the date of his reemploy-
ment and from February 15, 1950, the date of his second discharge, to^
April 10, 1950, the date on which he was permanently reemployed.
In F. W. Woolworth Company,` the Board adopted a method of
computing back pay, on the basis of each separate calendar quarter or
portion thereof during the period from the date of the discharge or
other discrimination to the date of a proper offer of reinstatement.
Under this formula an employee's loss of pay is determined by de-
ducting from a sum equal to that which he would normally have
earned for each quarter or portion thereof, his net earnings, if any,
in other employment during that period. Earnings in one particular
quarter have no effect upon the back-pay liability for any other
quarter.
This new method of computing back pay was rejected by the Trial
Examiner in this case. The Examiner stated that the division of
responsibility for back pay in this case between the Union and the
Employer made application of the Woolworth formula impracticable.
We do not agree. We will, accordingly, modify the remedy recom-
mended by the Trial Examiner by requiring that back pay be com-
puted in accordance with the foregoing formula.
As no exceptions were filed to the Examiner's failure to recom-
mend the setting aside of the entire contract and the withdrawal
of recognition from the Union until certified by the Board, we shall
adopt his remaining recommendations without any change.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National. Labor Relations Act, as amended, the National Labor
Relations Board hereby orders :
I. That the Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, General Team-
sters, Chauffeurs and Helpers, Local 249, A. F. L., its officers and
agents, shall :
a. Cease and desist from :
(1) Restraining or coercing employees of Squirt Distributing Com-
pany, its successors or assigns, in the exercise of their right to refrain
5 90 NLRB 289.
SQUIRT DISTRIBUTING COMPANY 1669
from any or all of the concerted activities protected by Section 7
of the Act, except to the extent that such right may be affected by
a valid agreement requiring -membership in the Union as a condition
of employment as authorized in Section 8 (a) (3) of the Act;
(2) Causing or attempting to cause Squirt Distributing Company
to discriminate against Gordon J. Ellwood or any other employee,
in violation of Section 8 (a) (3) of the Act;
(3) Giving effect to the union-security clause in the existing con-
tract with Squirt Distributing Company until it is amended to con-
form with 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 Gordon J. Ellwood and Squirt Distributing Company
in writing that it has withdrawn its objection to the employment of
Ellwood;
(2) Jointly and severally with Squirt Distributing Company make
whole Gordon J. Ellwood in the manner prescribed in this Decision
and Order for any loss of pay he may have suffered by reason of the
discrimination against him for the periods from January 23 to Feb-
ruary 9, 1950, and from February 15 to April 10, 1950;
(3) Post at its business office in Pittsburgh, Pennsylvania, and
wherever notices to its members are customarily posted, copies of the
notice attached hereto and marked Appendix A s Copies of said
notice, to be furnished by the Regional Director for the Sixth Region,
shall be duly signed by a representative of the Respondent Union,
immediately upon receipt thereof, and shall be promptly posted and
maintained by it for a period of at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by the Respondent Union to insure that such notices are not altered,
defaced, or covered by any other material;
(4) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
H. That the Respondent, Squirt Distributing Company, Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns, shall :
a. ' Cease and desist from :
(1) Refusing to employ or continue in employment, Gordon J.
Ellwood, or any other employee because he is not a member of the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
In the event this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, General Teamsters , Chauffeurs and Helpers,
Local 249, A. F. L., or any other labor organization , except to the
extent that employment or continued employment may be condi-
tioned upon membership in a labor organization pursuant to a valid
contract in accordance with the requirements of Section 8 (a) (3)
of the Act;
(2) By any like or related conduct, or by giving effect to the union-
security clause in the contract now existing, interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to refrain
from any or all of the concerted activities protected by Section 7 of
the Act, except 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) Credit Gordon J. Ellwood with seniority and other rights
and privileges as a permanent employee from January 23, 1950;
(2) Jointly and severally with the Union, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer
ica, General Teamsters, Chauffeurs and Helpers Local 249, A. F. L.,.
make Ellwood whole in the manner set forth in this Decision and
Order for any loss of pay suffered by him as a result of the discrimina-
tion against him for the periods from January 23 to February 9, 1950,
and from February 15 to April 10, 1950;
(3) Upon request make available to the National Labor Relations.
Board, or its agents, for examination and copying, all payroll records,.
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due under the terms of this Order;
(4) Post at its place of business in Pittsburgh, Pennsylvania, copies
of the notice attached hereto and marked Appendix B.7 Copies of
said notice, to be furnished by the Regional Director for the Sixth
Region, shall be duly signed by the Respondent Employer's repre-
sentative immediately upon receipt thereof and promptly posted and,
maintained by it for a period of at least sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent Employer to insure that said notices are not altered,
defaced, or covered by any other material.;
(5) Notify the Regional Director for the Sixth Region in writing,.
within ten (10) days from the date of this Order, what steps it has,
taken to comply herewith.
' In the event this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
SQUIRT DISTRIBUTING COMPANY
APPENDIX A
NOTICE
1671
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS,,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL,
TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL 249, A. F. L., AND TO.
ALL EMPLOYEES OF SQUIRT DISTRIBUTING COMPANY
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, we hereby notify you that.:
WE WILL NOT cause or attempt to cause SQUIRT DISTRIBUTING-
COMPANY to discriminate against Gordon J. Ellwood or any other-
employee, in violation of Section 8 (a) (3) of the Act.
AVE WILL NOT restrain or coerce any employee of SQUIRT DIS-
TRIBUTING COMPANY in the exercise of his right to refrain from any
or all of the concerted activities protected by Section 7 of the -
Act, except in accordance with the provisions of Section 8 (a) (3)
of the Act.
WE WILL NOT give effect to the union-security provisions in our
contract with SQUIRT DISTRIBUTING COMPANY until it is amended
to conform with Section 8 (a) (3) of the Act.
WE WILL MAKE Gordon J. Ellwood whole for any loss of earn-
ings sustained by reason of the discrimination against him.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, GENERAL TEAMSTERS, CHAUF-
FEURS AND HELPERS, LOCAL 249, A. F. L.
Labor Organization.
By---------------------------------- ------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,,-
and must not be altered, defaced, or covered by any other material.
APPENDIX B
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, we hereby notify our employees that :
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by discharge, layoff, or refusal to hire, or in
any like or similar manner interfere with, restrain, or coerce
,our employees in the exercise of their right to refrain from
:self-organization, from forming, joining, or assisting labor
organizations, from bargaining collectively through representa-
tives of their own choosing, and from engaging in other concerted
.activities for the purpose of collective bargaining or other mutual
.aid or protection, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as. a condition of employment as authorized in
.Section 8 (a) (3) of the Act.
WE WILL NOT give,effect to the union-security provision in our
'Contract With INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL
TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL 249, A. F . L., unless
,or until it is amended to conform to the requirements of Section
:8 (a) (3) of the Act.
WE WILL MAKE Gordon J. Ellwood whole for any loss of earn-
ings he has sustained as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the amended Act.
SQUIRT DISTRIBUTING COMPANY,
Employer.
By ---------'--------------- ------------
Dated --------------------
(Representative) (Title)
This notice must remain posted for 60 days ,front the date hereof,
itnd must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Emil E. Narick, Esq., for the General Counsel.
William C. Blesch, Esq., of Pittsburgh, Pa., for the Respondent-Employer.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed January 24, June 6, and. June 16,
1950, by Gordon J. Ellwood, an individual,. in Case No. 6-CA-256, against Squirt
Distributing Company, herein called the Employer, and in Case No. 6-CB-91,
against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters, Chauffeurs and Helpers , Local 249,
A. F. L., herein called the Union, the General Counsel of the National Labor
Relations Board, herein called respectively the General Counsel and the Board,
SQUIRT DISTRIBUTING COMPANY 1673
by the Regional. Director for the Sixth Region, consolidated the cases for hearing,
and issued his complaint elated June 16, 1950, alleging that the Employer had
engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1), (2), and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act, and that the Union had en-
gaged in and was engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act. Copies of the charges, the order
consolidating the cases, the complaint, and a notice of hearing were duly served
upon the Employer and the Union, herein called Respondents, and Ellwood.
With respect to unfair labor practices the complaint alleged that: (1) The
Employer on or about the dates of January 24 and February 13, 1950, un-
lawfully discharged Ellwood and after the latter date refused to reinstate him
because he was not a member of the Union; (2) the Employer entered into, on
May 14, 1949, and on May 1, 1950, a collective bargaining agreement with the
Union containing an unlawful union-security clause; and (3) the Union on or
about January 18, January 24, and February 13, 1950, insisted and demanded
that the Employer discharge Ellwood because Ellwood was not a member of
the Union.
The answer of the Employer, dated June 23, 1950, denied the commission of
unfair labor practices.
Pursuant to notice, a hearing was held in Pittsburgh, Pennsylvania, on July
5, 1950, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel and the Employer were represented
by counsel, participated in the hearing, were afforded full opportunity to ex-
amine and cross-examine witnesses, and to introduce evidence pertinent to the
issues. The Union, although duly served, filed no answer and did not appear at
the hearing. At the opening of the hearing, the General Counsel moved for
judgment on the pleadings, as provided in the Board's Rules and Regulations,
against the Union. I reserved ruling on the motion. It is hereby granted.
At the close of the hearing, a discussion in the nature of oral argument-was
had and all parties were given opportunity to file briefs. None has been
received.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT 1
I. THE BUSINESS OF THE EMPLOYER
The Employer is a Pennsylvania corporation with its sole office and place
of business located in Pittsburgh, Pennsylvania, where it is engaged in the
sale and distribution at wholesale of "Squirt," a nationally distributed, car-
bonated beverage, and "Kayo Chocolate," a nationally distributed chocolate
drink. The Employer holds exclusive franchises for such distribution in Al-
legheny County and Ambridge, Beaver County, in the State of Pennsylvania,
from the Squirt Bottling Company, herein called the Bottling Company, and
from Alan Zeeman, herein called Zeeman, both of Pittsburgh.
During the 12-month period preceding the hearing, the Employer purchased
from the Bottling Company, beverages having an approximate value of $175,000,
all of which originated in Pennsylvania. During the same period the Employer
1 These are made upon the undisputed and credited testimony of Ellwood and Sam Berko-
witz, the only witnesses called, and upon stipulations made at the hearing. - -
929979-51-vol. 92-107
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sold these beverages to various retail outlets in its assigned territory for a
price of approximately $230,000. During the same period the Employer pur-
chased, within Pennsylvania, Kayo Chocolate to the approximate amount of
$55,000, and sold this product to retail outlets within Pennsylvania for
approximately $80,000.
The Bottling Company is a Pennsylvania corporation engaged in the bottling
of Squirt products for distribution in 10 counties in western Pennsylvania
under an exclusive franchise from the Squirt Company, Beverly Hills, California.
During the 12-month period preceding the hearing,. the Bottling Company pur-
chased syrups and other supplies necessary for the production of Squirt to
the approximate value of $140,000, about 85 percent of which was shipped to
the Bottling Company from points outside Pennsylvania. During the same
period, the Bottling Company sold Squirt, all in Pennsylvania, to the approximate
value of $330,000.
Zeeman bottles Kayo Chocolate under exclusive franchise from Chocolate
Products Corporation, Chicago, Illinois. During the past year, Zeeman and
his predecessor purchased supplies used in the bottling operation to the amount,
approximately, of $22,000, all of which was shipped from points outside Penn-.
Sylvania, and sold the bottled product through the Employer and other dis-
tributors for an amount approximating $84,000.
I find that the Employer is an essential link in a chain of national distribution
from the Squirt Company in California and the Chocolate Products Corporation
in Illinois, to retailers in western Pennsylvania. I find that the operations of
the Employer, as it concedes, are in commerce and affect commerce within the
meaning of the Act.'
II. THE UNION
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters, Chauffeurs and Helpers, Local 249, is
a labor organization affiliated with the American Federation of Labor, admitting
to membership employees of the Employer.
III. THE UNFAIR LABOR PRACTICES
A. The several discharges of Gordon J. Ellwood
During the cooler seasons of the year, the Employer operates seven or eight
truck routes using the services of seven or eight driver-salesmen. During the
summer months; two or three routes, and driver-salesmen, are added.
In July 1949, Gordon J. Ellwood was hired as a driver-salesman, with the
understanding that his employment would terminate in the fall, as it did. Sam
Berkowitz, the Employer's president and active manager, suggested to Ellwood
that the latter, after working 30 days, apply for membership in the Union. In
July, Ellwood approached Edward Michalak, the Union's shop steward, in that
connection. Michalak replied that Ellwood would be admitted to membership
when his employment became permanent. Ellwood again brought up the subject
of membership with Michalak in August and received the same reply.
Ellwood's job ended in September but Berkowitz, impressed by the former's
industry and ability, called him back during the fall months whenever the need
for an extra driver arose. The Union made no protest in respect to this
intermittent employment of one who was not its member.
x The Red Rock Company and The Red Rock Cola Company, 84 NLRB 521.
SQUIRT DISTRIBUTING COMPANY 1675
One of the permanent drivers having been discharged, Berkowitz recalled
Ellwood on January 17, 1950, and informed him that he was being given perma-
nent employment. Ellwood worked the remainder of the week which ended
January 20.
On January 23' Ellwood reported for work to learn that the Union had pro-
tested his employment ; that Melvin Humphreys, vice president and business
agent for the Union, was insisting that Berkowitz replace the discharged driver
with a member of the Union.
Shop Steward Michalak, frequently consulting by telephone with Humphreys,
urged that a man be dispatched from the Union to fill the vacancy. Berkowitz
insisted that the job be given to Ellwood. When Michalak told Berkowitz that
unless he complied, the drivers would not work, Berkowitz capitulated, one,
Rumpler, a member of the Union, was dispatched to the job. Ellwood was
terminated.
Berkowitz testified credibly that he quickly became dissatisfied with Rumpler
and that, on Wednesday, February 8, 1950, he told Steward Michalak that
Rumpler was to be discharged. Michalak asked that Rumpler be permitted to
finish the week. Berkowitz consented.
On Thursday, however, Rumpler was ill and did not appear for work. Berko-
witz called Ellwood who substituted for Rumpler that day and the next. On
Friday, the other drivers at first refused to start their routes until they were
advised by Business Agent Humphreys that Ellwood was substituting for Rump-
ler on a temporary basis. At the close of the day, Berkowitz told Ellwood to
return on Monday; that his job would then be permanent.
Hopeful., as ever, Ellwood did so. Whatever premonition of difficulty he may
have held was quickly shown to have substantial basis in actuality. Steward
Michalak insisted to Berkowitz that Rumpler be retained. Berkowitz refused.
Michalak (fortified by telephonic consultation with Humphreys) retreated in
good order to his next strong point and there stood immovable behind his final
insistence that no one not supplied by the Union could work the route if Rumpler
did not. The battle lines were drawn. Berkowitz stubbornly clung to his posi-
tion that the job was Ellwood's.
There being no further "give" in Berkowitz and no disposition not to "take"
on the part of Michalak, a stalemate resulted. The Union would not permit
its members to work ; Berkowitz would not discharge Ellwood. So,, neither
Squirt nor Kayo Chocolate was distributed in Berkowitz's territory on Monday
or Tuesday, causing a loss of about $500 to Berkowitz.
On Tuesday, Humphreys met with Berkowitz and upon the promise that Ell-
wood could be given the next permanent job that might open if a man dispatched
from the Union was put in Rumpler's place, a compromise was reached. The
drivers returned to work on Wednesday. Ellwood retired to the ranks of the
unemployed.
On April 10, without objection from the Union, Ellwood was given a perma-
nent job as driver-salesman by Berkowitz.
To state the facts is to decide the case. By terminating Ellwood's employ-
ment on January 23 and February 15,1950, at the insistence of the Union, because
Ellwood was not a member of the Union and had not been dispatched by it, the
Employer discriminated in regard to Ellwood's hire and Tenure of employment
thus encouraging membership in the Union in violation of Section 8 (a) (3) of
the Act. It is so found. I also find that by such discrimination the Employer
3 Ellwood placed these happenings on the 24th , I believe mistakenly.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained, and coerced employees in the exercise of their rights
under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
The discrimination found may not be justified by the "union shop" clause in
the agreement, then existing between the Respondents, as will appear.
B. The contracts; assistance and support to the Union
On May 14, 1949, Respondents entered into a collective bargaining contract
covering a unit of driver-salesmen and, the Union having been successful in a U A
election conducted by the Board, incorporating a union-security clause reading :
All drivers and helpers in the employ of the Employer shall come under
this Agreement and shall as a condition of employment become members and
maintain membership in good standing in the Union for duration of this
Agreement. All new employees in the employ of the Employer coming under
this Agreement shall join the Union as a condition of employment and con-
tinue their membership for the duration of this agreement.
The contract remained in effect until April 30, 1950, and was succeeded by
another, expiring April 30, 1951, containing the same clause. By requiring mem-
bership in the Union of all who are, or become employees of the Employer, with-
out allowing the 30-day period required-by the Act, the clause is patently unlaw-
ful. In practice, in the case of Ellwood, it was given application even more
stringent and discriminatory than its language could justify. True enough Ell-
wood was not required, or indeed permitted, to join the Union when he had
temporary employment but as soon as he was offered a permanent job, the Union
acted as if it had a closed-shop agreement with the Employer and demanded
that only its members be given such employment.
The union-security provision, failing as it does to satisfy the requirements.
of the proviso in Section 8 (a) (3) of the Act is illegal' By continuing such a
clause in effect after July 24, 1949,5 and by incorporating it in the new contract
on June 14, 1950, the Employer imposed a restraint upon those employees desir-
ing to.refrain from union activities within the meaning of Section 7 of the Act
and thereby violated Section 8 (a) (1) of the Act. Further, by assenting to
the unlawful union-security clause since July 24, 1949, the Employer has lent its
support to the Union in securing members and has coerced its employees to be-
come members of the Union in violation of Section 8 (a) (2) and (1) of the Act.'
C. The Union's violations of the act
I find, that by failing to answer the complaint and by not offering any excuse
for such failure, the Union has admitted the pertinent allegations of the com-
plaint with respect to violations of Section 8 (b) (1) (A) and (2).
I find, therefore, that by causing the Employer in violation of Section 8 (a)
(3) of the Act, on January 23 and February 15, 1950, to terminate the employ-
ment of Ellwood and by attempting to cause such termination on February 13
and 14,° the Union violated Section 8 (b) (2)' of the Act.
4 Salant d Salant, Incorporated, 87 NLRB 215.
The beginning of the 6-month period before the charge was filed.
Salant d Salant, Incorporated, supra.
The strike on these dates had but one objective, the unlawful one of forcing the discrim-
inatory discharge of Ellwood. Thus the Union alone caused Ellwood to lose his employment
for those 2 days.
SQUIRT DISTRIBUTING COMPANY 1677
By such conduct and by continuing in effect since July 24, 1949, a collective
bargaining agreement containing an unlawful and union-security clause, the
Respondent Union restrained and coerced employees in the exercise of their
rights under Section 7 of the Act and thereby violated Section (b) (1) (A) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in
connection with the operations of thb Employer, 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
Ellwood having been discriminatorily deprived of opportunity for permanent
employment with the Employer from January 23 to April 10, 1950, I will rec-
ommend that he be made whole for any loss of earnings he sustained as a result
of the discrimination against him by payment to him of a sum of money equal
to that which he would have earned as wages during the period less his net
earnings .' The Employer shall make available to the Board upon request, pay-
roll and other records to facilitate the computation of the amount of back pay.9
Where, as here, an employer and a union commit unfair labor practices which
in combination result in a discriminatory discharge , the Board has uniformly
required, where the pleadings and the statute permitted that both make whole
the subject of discrimination without attempt to prorate or allocate the financial
burden between them. The concern of the Board in this aspect of the case is,
in the public interest , to restore to the extent practicable , the status quo. How-
ever, counsel for the Employer argued at the hearing that the Union was the
active, motivating force which made it a practical impossibility for Ellwood
to continue as a permanent employee on January 23 and February 13; that
the Employer was willing , and indeed eager, to keep Ellwood in its employ..
The evidence fully supports the argument . I am convinced that the strike of
February 13 presented to the Employer the unhappy choice of violating the Act
by discharging Ellwood or suffering a protracted and expensive shutdown of
its business . That it succumbed only to strong economic pressure does not of
course , excuse the violation but it is convincing proof of the Employer's bona
fides. The facts of this case require, I believe , that consideration be given to
inherent equities ; that recognition be taken of the fact that here the Employer
was actually helpless to resist the demands of the Union ; and that it be said
that he who forces the commission of an unfair labor practice is in a different
situation from the reluctant , protesting , and coerced tool through which the
violation is accomplished . I will recommend therefore that the Union alone"
be required to make Ellwood whole for the period from February 13 to the date
he was given permanent employment, April 10.
8 Crossett Lumber Company, 8 NLRB 440, 497-8.
"F. W. Woolworth Company, 90 NLRB 289.
1" The objection suggests itself that by such a disposition of the back-pay problem I am
encouraging employers to accede to an unlawful demand for discharge; that such an
employer may understand that if he does so in the face of a threatened strike he will not
be required to make whole the discharged employee. This remedy does not stand for such
a principle and is fashioned for use only in the case here presented where the Employer
did resist the unlawful demand, was subjected to a strike, and suffered a substantial
financial loss.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the earlier period of discrimination, from January 23 to February 9,
no novel problem appears. The Union demanded Ellwood's discharge, unlaw-
fully. The Employer complied, unlawfully. The mitigating circumstance of
an actual strike with attendant financial loss to the Employer was not present.
I will recommend that the Employer and the Union jointly and severally make
Ellwood whole for his loss of wages during that period"
As Ellwood is now permanently employed by the Employer, it is unnecessary
to order his reinstatement. It will be recommended, however, that he be granted
seniority and other rights and privileges from the first date of discrimination,
January 23, 1950.
As there is no evidence to the contrary, I assume that the Union did, in
fact, represent a majority of the Employer's employees when recognition first
was gained. The General Counsel concedes that subsequent to recognition the
Union was successful in a union-security election conducted by the Board and
thus was authorized to negotiate a union-shop agreement. As has been found
the union-security clause in the agreements exceeds the bounds permitted by
the Act. In a case 12 where the Board found such a clause to be illegal and made
with a minority union, it required a disaffirmance of the contract and a with-
drawal of recognition. The same remedy was imposed in another case 18 where,
although the contracting union was a majority representative, it had not been
authorized by the employees by an appropriate election to negotiate on union
security and had secured an agreement which required the employer to prefer
its members in hiring.
In the latter case the Board expressly rejected the recommendation of the
Trial Examiner that only the offending clause be excised. In the situation here
presented, the Union was a majority representative, it had won the authoriz-
ing election, and the union-security provisions it secured in its contracts offend
the Act only in that they require, in connection with union membership, to be
done immediately that which the Act would permit to be delayed for 30 days.
I believe that here to require a disavowal of the existing contract and a with-
drawal of recognition would be doctrinaire. Such a remedy instead of tending
to effectuate the policies of the Act would appear rather to subvert them by
depriving the employees of representation. The Union is a majority repre-
sentative, it has authority to negotiate a union-shop agreement , and there is
little reason to believe that its majority status has been maintained because
under the illegal clause employees could be required to join the Union im-
mediately rather than at the expiration of 30 days. I will recommend there-
fore that Respondents cease giving effect to the union-security clause as now
drawn and not the disavowal of the entire contract or withdrawal of recognition.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. Squirt Distributing Company is an employer engaged in commerce within
the meaning of Section 2 (2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Teamsters, Chauffeurs and Helpers, Local 249,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act.
11 This division of responsibility for back pay makes impracticable the application of the
Woolworth formula, supra.
11 Salant d Salant, Incorporated, supra
13 Julius. Resnick, .Inc., 86 NLRB 38.
SQUIRT DISTRIBUTING COMPANY 1679
3. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act , the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( b) (1) (A) of the Act.
4. By causing the Employer to discriminate against Gordon J. Ellwood in
violation of Section S (a) (3) of the Act, the Respondent . Union has engaged in
and is engaging in unfair labor practices within the meaning of Section S .( b) (2)
of the Act.
5. By interfering with, restraining , and coercing employees in the exercise
of their rights under Section 7 of the Act , the Employer has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) ' (1) of
the Act.
6. By discriminating in regard to the hire and tenure of employment of
Gordon J. Ellwood , thereby encouraging membership in a labor organization,
the Employer has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
7. The ' aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]