St. Joe Paper Co.

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1340 (N.L.R.B. 1962)

1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director, in writing, that it will comply with the foregoing recommendations,
the Board issue an order requiring said Company to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Hotel-Motel Local 200, Hotel &
Restaurant Employees and Bartenders International Union, AFL-CIO, or any
other labor organization, by discriminatorily assigning to less agreeable tasks
or discharging any of our employees or discriminating in any other manner in
respect to their hire and tenure of employment, or any other term or condition
of employment.
WE WILL NOT interrogate or threaten employees in connection with union
activities, or take union cards from them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist Hotel-Motel Local 200, Hotel & Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, 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
of such activities.
WE WILL offer to Cololsees Bowers, Lavelle Handy, Alfred Russ, Jr., Leonard
Montgomery, and Earnest Adams immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of earnings
suffered as a result of the interference, restraint, coercion, and discrimination
against them.
All of our employees are free to become, remain, or to refrain from becoming or
remaining members in good standing of Hotel-Motel Local 200, Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO, or any other labor
organization.
MORRISON CAFETERIA COMPANY OF LITTLE ROCK, 'INC.,
Employer.
Dated------------ ------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must m A be
altered, defaced, or covered by any other material.
St. Joe Paper Company and James Rotolo
Local 118, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and James Rotolo
Local 118, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Goetzman and New-
man, Inc] and James Rotolo . Cases Nos. 3-CA-1538, 3-CB-198,
and 3-CB-468. February 28, 1962
DECISION AND ORDER
On July 10, 1961, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
135 NLRB No. 134.
ST. 'JOE PAPER COMPANY 1341
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondents filed execptions to the
Intermediate Report and 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 Intermedi-
ate Report, the exceptions, and briefs, and the entire record in this
case, and hereby' adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
The 'record shows that Rotolo was employed by Goetzman and
Newman, Inc., as a truckdriver in mid-spring of 1960. In July, the
Union's steward told the then president of the Union, Brabant, that
the employer wanted to lay off one of two drivers, Rotolo or Shenks-
neither of whom apparently had been employed long enough to have
seniority rights. Upon being told that Rotolo was not a union mem-
ber (Rotolo had been expelled in 1950), and that Shenks had a Local
118 book, Brabant said, "Keep Shenks on." The steward then told
the employer's terminal manager that as long as the barn was a union
one to keep Shenks on. On July 29, 1960, the terminal, manager told
his assistant that the Union had been putting pressure on him and
that he had to lay off Rotolo because Rotolo was not a unionman. Ro-
tolo was then terminated.
In the fall of 1960, Rotolo was employed by Respondent St. Joe
Paper as 'a "casual" truckdriver. Under the terms of the agreement
between St. Joe Paper and Respondent Local 118, once Rotolo worked
30 consecutive days he would have become a "regular" driver and
acquired a so-called seniority status.
At the time material here, St. Joe Paper had in its employ five "reg-
ular" drivers. One of these, Braun, took a job in the plant about Oc-
tober 23. St. Joe Paper's shipping foreman, Howell, and its shipping
supervisor, LaMagro, decided Rotolo would make a good "regular"
driver to replace Braun. Around November 22 or 23, 1960, Howell
advised St. Joe Paper's production superintendent, Spies, of their
views. Spies said he wanted to think it over. He came back later
and told Howell to lay Rotolo off. Rotolo had not as yet worked
30 consecutive days. Howell terminated Rotolo as instructed.
It appears that in November, prior to Rotolo's discharge, St. Joe
Paper's general manager, McNelly, had a meeting with Ernest Moyer,
Brabant's successor as president of the Union. Moyer told McNelly
that St. Poe Paper had an employee by the name of Rotolo who was
",a troublemaker," "a bad actor," "a problem," one who "had to be
watched," "the Company had better watch Rotolo," and that "he was
always running to the Labor Board." McNelly related this conver-
sation to Spies and "suggested" that he discharge Rotolo. As noted
above, Spies instructed Howell to terminate Rotolo.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We think that the above facts clearly establish that the Respond-
ent Local caused both discharges because Rotolo was not a member
in good standing of that Union, thereby violating Section 8 (b) (2)
and (1) (A) of the Act;,and that Respondent St. Joe Paper, in acced-
ing to the position taken by the Union against Rotolo and discharg-
ing him because of his lack of membership in good standing in that
Union, violated Section 8(a) (3) and (1) of the Act. Because the
foregoing findings furnish adequate basis for our conclusions, we
need not, and do not, resort to or pass upon the additional legal prin-
ciples and considerations advanced by the Trial Examiner in his
Intermediate Report as further support for his ultimate finding.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent, St. Joe Paper Company, Rochester, New York, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 118, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization of its employees, by dis-
charging or in any other manner discriminating against any employee
in regard to hire or tenure of employment or any term or condition of
employment, except as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
(b) In any other manner interfering with, restraining, or coercing
its employees 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 organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer James Rotolo immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and 'jointly and severally
with the Respondent Union make him whole for any loss of pay suf-
fered as a result of the discrimination against him, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination or copying, all payroll records, social security
ST. JOE PAPER COMPANY 1343
payment records, timecards, personnel records and reports, and all
other records necessay or useful to an analysis of the amount of back-
pay due and the right of reinstatement under the terms of this Order.
(c) Post at its place of business in Rochester, New York, copies of
the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Third Region,
shall, after being duly signed by the Respondent's representative, be
posted immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice marked "Appen-
dix B."
(e) Furnish to the said Regional Director signed copies of the no-
tice marked "Appendix A" for posting by Respondent Union, as here-
inafter directed.
(f) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
B. Respondent, Local 118, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Rochester,
New York, and its officers, representatives, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Causing or attempting to cause St. Joe Paper Company or
Goetzman and Newman, Inc., to discriminate against any of its em-
ployees in violation of Section 8(a) (3) of the Act.
(b) In any other manner restraining or coercing employees 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 organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole James Rotolo for any loss of pay suffered as a
result of the discrimination against him while an employee of Goetz-
man and Newman, Inc., in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
1 In 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"
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Jointly and severally with Respondent Company make whole
James Rotolo for any loss of pay suffered as a result of the dis-
crimination against him while an employee of the Company in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Notify James Rotolo and St. Joe Paper Company and Goetz
man and Newman, Inc., in writing, that it withdraws its objection
to Rotolo's employment and requests St. Joe Company and Goetzman
to offer him reinstatement.
(d) Post at its business office copies of the notice attached hereto
marked "Appendix B." 2 Copies of said notice, to be furnished by
the Regional Director for the Third Region, shall, after being duly
signed by the Respondent's representative, be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
to insure that such 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, as soon as they are forwarded by the Regional
Director, copies of the Respondent Company's notice marked "Ap-
pendix A."
(f) Forward signed copies of "Appendix B" to the Regional Di-
rector for posting by St. Joe Paper Company and Goetzman and
Newman, Inc., the latter willing, at their places of business.
(g) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
2 See footnote 1, supra
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 encourage membership in Local 118, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, by dis-
charging or in any other manner discriminating against any
employee in regard to hire or tenure of employment or any term
or condition of employment, except as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
ST. JOE PAPER COMPANY 1345
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees 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 organi-
zation as 'a condition of employment , as authorized in Section
8(a) (3) of the Act, as modified by the Labor -Management Re-
porting and Disclosure Act of 1959.
WE WILL offer James Rotolo immediate and full reinstatement.
to his former or a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and jointly
and severally with Local 118, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,,
make him whole for any loss of pay suffered as a result of our dis-
crimination against him.
All 'our employees are free to become or remain or to refrain from
becoming 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 in conformity with Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
ST. JOE PAPER COMPANY,
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..
Employees may communicate directly with the Board's Regional
Office (The 120 Building, 120 Delaware Avenue, Buffalo 2, New
York; Telephone Number, TL 4-4780) if they have any question con-
cerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS
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 you that :
WE WILL NOT cause or attempt to cause either St. Joe Paper-
Company or Goetzman and Newman, Inc., to discriminate against-
James Rotolo or any other employee in violation of Section-
8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL notify both St. Joe Paper Company and Goetzman
and Newman, Inc., in writing, that we withdraw our objections.
634449-62-vol 135-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his employment and request his reinstatement to his former
or an equivalent position.
WE WILL jointly and severally with St. Joe Paper Company
make James Rotolo whole for any loss of pay suffered because
of the discrimination against him while an employee of St. Joe
Paper Company and make him whole for any loss of pay suffered
by the discrimination against him while an employee of Goetzman
and Newman, Inc.
WE WILL NOT in any other manner restrain or coerce employees
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 agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
LOCAL 118, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional
Office (The 120 Building, 120 Delaware Avenue, Buffalo 2, New York;
Telephone Number, TL 4-4780) if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The questions in these consolidated cases, which were heard on June 5 and 6,
1961 , are whether St. Joe Paper Company , herein called the Company or Respond-
ent Company, violated Sections 8(a)(1) and (3) and 2( 6) and (7) of the National
Labor Relations Act, as amended , 29 U.S.C. Sec. 151, et seq ., herein called the Act,
by discharging its employee , James Rotolo, and failing and refusing to reinstate him
to employment because he was not a member in good standing of Local 118, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, herein called the Union or the Union Respondent , and whether the Union
violated Sections 8(b)(1)'(A) and (2 ) and 2 ( 6) and (7) of the Act by attempting
to cause and causing the Respondent Company to discharge and to refuse to rein-
state Rotolo because he was not a member in good standing of the Union and by
attempting to cause and causing Goetzman and Newman , Inc., herein called Goetz-
man, to discharge Rotolo for the same reason.
Motions made at the close of the General Counsel's case to dismiss the complaint
were denied with leave reserved for the renewal thereof. The same motions made
after all parties rested are disposed of in accordance with the findings and conclusions
hereunder . Counsel for the Union and Company argued orally on June 6. All
parties were given ,an opportunity to file briefs on or before June 30, 1961.
Upon the entire record , and from my observation of the witnesses , I make the
following:
ST. JOE PAPER COMPANY 1347
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Florida corporation engaged in the manufacture and sale of
corrugated paper boxes with plants in 15 States of the United States including one
at Rochester, New York, which is the only one involved in these proceedings. Dur-
ing a representative material period it has caused to be purchased and shipped
to Rochester from points outside the State of New York materials valued in excess of
$2,000,000 and shipped from Rochester to points outside the State goods valued in
.excess of $250,000.
I find that the Company is engaged in commerce within the meaning of the Act.
II. THE BUSINESS OF GOETZMAN
Goetzman is a New York corporation engaged in the general trucking business
with its principal place of business in Newark, New York, with a terminal located
in Syracuse, New York, and one, which is alone involved in these proceedings, at
Rochester, New York. During a representative material period it derived from its
operations within New York a gross income in excess of $650,000 out of which
services valued at $250,000 were performed pursuant to contracts or agreements
with various interstate carriers, including with others, Roadway Express Company,
Akron, Ohio; Caby, Cleveland, Ohio; Atlantic Coast Freight, Jersey City, New
Jersey; and Associated Transport, New York, New York, operating between and
among various States of the United States, each of which derived in excess of $50,000
from its interstate common carrier operations.
I find that Goetzman is engaged in commerce within the meaning of the Act.
III. THE UNION INVOLVED
I find that the Union is a labor organization as defined in Section 2(5) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Causing Goetzman and Newman to discharge Rotolo
Two weeks or so after Rotolo went to work as a truckdriver for Goetzman in
the mid-spring of 1960, Charles Printi, the Union's barn steward, learned that
Rotolo was not a union member. In July, Printi went to the union hall and claimed
to the Respondent Union's then president, Brabant, that Goetzman wanted to lay
off one of two drivers, Rotolo or a man named Shenks, neither of whom had estab-
lished seniority rights. Brabant asked a question about union books. Shenks had
a Local 118 book. Rotolo had none. Brabant said "Keep Shenks on." Printi then
returned to the barn and told Edwin Van Damme, Goetzman's terminal manager,
that as long as it was a union barn to keep Shenks on. On July 29, 1960, Van
Damme told his assistant, Freeman L. Gagnon, that the Union had been putting
pressure on him and that he must lay Roloto off because he was not a unionman.
Although Rotolo had been given the regular driving job of Dick Martin who was
transferring to the position of dockman, and had reported and punched in his card,
Gagnon told him not to start, that the boys did not like the idea of his working
without a card, and it had been decided not to use him any more.
This case (Case No. 3-CB-468) was closed by the Regional Director for the
Third Region on December'20, 1960 (conditioned upon continued observance of
the terms of a settlement agreement), but ordered reopened on April 13, 1961, on
which date the Regional Director's approval of the settlement agreement was with-
drawn, vacated, and revoked. Responsive to no allegation in the complaint, counsel
for the Union offered in evidence as exhibits copies of a settlement agreement and
notice to employees. For the quite fundamental reasons appearing in the colloquy
on pages I1 to 13 of the record, the offer was declined. The proffered exhibits are
to be found in a rejected file.
I believe and find that the Respondent Union caused Goetman to discharge Rotolo
and thereby violated Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act.
B. The discharge, and causing the discharge, of Rotolo by Respondent St. Joe
Paper Company
On the night before Thanksgiving, November 23, 1960, Roger C. Howell, the
Company's shipping foreman, telephoned Rotolo, since 1950 expelled by the Union,
not to come in to work Friday. Rotolo then had completed 28 consecutive days
of employment-exclusive of Saturdays and Sundays-with the, Company as a
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"casual" truck operator. Had he been allowed 30 days of consecutive employment
he then would have become a "regular" driver and achieved -a so-called seniority
status whereby under the terms of the Company's contract with the Union he would
have to be used before the Company could use another driver. If he had become
a seniority status regular driver and then discharged, the Union would have had a
right to prefer charges against the Company.
Up until about a month before the date of Rotolo's discharge, the Company bad'
employed five regular drivers. One of these, Raymond Braun, took another job,
in the plant about October 23, 1960. Howell and Sam LaMagro, the Company's
shipping supervisor, discussed Rotolo with each other and decided that he would
make a good regular driver to replace Braun . Howell so advised Robert Spies, the
Company's production superintendent, probably on November 22 or 23, 1960.
Spies asked for a chance to think it over. He came back later and told Howell to
lay Rotolo off.
Donald P. McNelly, the Company's general manager, and Ernest Moyer, by
then Brabant's successor as president of the Union, had a casual meeting in No-
vember 1960. The latter said the Company had an employee by the name of Rotolo
who was "a troublemaker," "strictly a troublemaker," "a bad actor," "a problem,"
one who "had to be watched," "the Company had better watch Rotolo," and that
"he was always running to the Labor Board." McNelly testified that Moyer made
"no direct request" that the Company discharge Rotolo. Moyer testified that his talk
with McNelly took place after he heard about the situation over at the Goetzman and
Newman Company which took place during his absence from the country and knew
of Rotolo being "a bad boy." McNelly reported this conversation to Spies. He
testified he would not say he specifically recalls telling Spies that the Union led
him to believe that it would just as soon the Company did not have Rotolo but at
the same time be would say that was perhaps the substance of the remark he passed
on to Spies, it was at least the general idea, and he invited Spies or suggested to
him, perhaps, that he fire Rotolo, but that he would not say that he gave Spies
an absolute instruction to do so.
We now remigrate to events following the Wednesday night, November 23, 1960,
telephone call. On Sunday, November 27, 1960, Rotolo telephoned LaMagro,
who, in response to Rotolo's statement he understood LaMagro had talked with
Spies and Howell the previous night and was told that he was on steady, replied'
that he was surprised if Rotolo was laid off as it did not seem to him that work
had slacked off so soon, that definitely it had been decided Rotolo was on steady
because it was felt that the Company would rather use an experienced driver than
an inexperienced driver. LaMagro told Rotolo he should either check with Howell
or Howell would call him as to whether or not there would be enough work for him
on Monday. On Tuesday, November 29, Rotolo reported for work as he had not
heard from Howell. The latter told him there was no work, he did not know why,
that there was nothing wrong with Rotolo's work, and that his work was good.
Howell said that Rotolo's understanding that Spies and LaMagro had decided to,
keep him on steady was correct. Then, when Rotolo asked Howell why he was not
working, Howell nodded his head negatively and walked away.
The evening of the same day, Tuesday, November 29, 1960, Rotolo went to,
LaMagro's home and inquired why he was not working at the plant any more.
LaMagro replied that Howell may have had pressure put upon him by the superin-
tendent, that he would talk to Howell when he (LaMagro) came back from his vaca-
tion and let Rotolo know. LaMagro returned to the job 6 days later but did not
communicate with Rotolo. LaMagro testified when he had the two conversations,
he knew that Rotolo had been laid off but he let the subject drop because it was
kind of hard sometimes to let a man go.
McNelly testified that a sales campaign was conducted in the fall of 1960 in an
effort to expand business and that results, which it was realized early in December
were actually taking hold, started being seen the beginning, or maybe before the
beginning of November. Within no more than 3 working days after Howell's
November 23 telephone instructions to Rotolo not to come to work, the Company
placed a newspaper advertisement for truckdrivers and before the end of the work-
week commencing November 28, one McDonald was employed as a casual driver
and achieved regular status after 30 days' consecutive employment.
Over their cups on December 31, 1960, one Joseph Barbato and LaMagro talked
about Rotolo, their mutual friend. LaMagro told Barbato that Rotolo had at one
time worked for him as a truckdriver, that he had got word that he had to let
him go before the 30-day period was up, that he hated to do it because Rotolo
was a good worker, and that he had to get rid of him, to let him go, and had to
fire him on account of the Union and his not being in the Union.
ST. JOE PAPER COMPANY 1349
C. Respondent's contentions and my conclusions
The Respondents both assert in general that there was insufficient and unsub-
stantial direct evidence to support a finding that they have violated the Act. With
-this contention I am unable to agree. The record speaks for itself disclosing, as it
does, not only far more than a modicum of credible immediate testimony but also
at least a degree of admission supporting the allegations of the complaint. More-
over, a finding need not be supported by direct evidence. Radio Officer's Union of
.the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) V.
N.L.R.B., 347 U.S. 17, 48-49, N.L.R.B. v. Link-Belt Company, 311 U.S. 584. In
this case the Board's function is to determine the real reasons for the discharges on
July 29 and November 23, 1960. In so doing it has the duty, as in all cases, to
consider circumstantial evidence and draw inferences therefrom as direct evidence
,is not always obtainable. No direct request by a union for an employee's discharge
is required; a warning even though veiled, amounts to a constructive request in
violation of the Act. Southeastern Plate Glass Company, a Division of Automobile
Glass Company, Inc., et al., 129 NLRB 412; N.L.R.B. V. English Mica Company,
195 F. 2d 986 (C.A. 4); Eastern Coal Corp. v. N.L.R.B., -176 F. 2d 131 (C.A. 4);
N.L.R.B. v. Putnam Tool Company, 290 F. 2d 663 (C.A. 6).
More specifically, it is urged that although McNelly drew inferences from Moyer's
references to Rotolo, since Moyer did not order McNelly to fire Rotolo, did not
get hold of Shop Steward Antonelli, Spies, or Howell and tell them that Rotolo
was to get out or else, and did not write McNelly a followup letter to get on record
.a request that the discharge had to be made, it cannot be said that the Union caused
the discharge.
The Board has consistently held that to find that a union caused prohibited
employer discrimination it is not necessary that an express demand be made.
Thus, a union's statements advising or suggesting action on the part of an employer
may be sufficient to support an 8(b)(2) finding so long as a causal connection be-
tween the Union's actions and the ensuing discrimination is shown. Local 20,
Bakery and Confectionery Workers International Union of America (Berwick Cake
-Co.), 126 NLRB 22; and see the Trial Examiner's report in Northwestern Montana
District Council of Carpenters' Unions et al. (Glacier Park Co.), 126 NLRB 889.
Also United Brotherhood of Carpenters and Joiners of America, AFL-CIO; et al.
(Endicott Church Furniture, Inc.), 125 NLRB 853, 858; Gibbs Corporation, 124
NLRB 1320, 1321, 1330.
Counsel for the Company very properly concedes that there does not have to be
coercion, pressure, or threats to constitute causation. What remains to be decided
is whether Rotolo was dropped from the payroll at the instance, suggestion, or
behest of the Union or for one or both of the two reasons advanced by the Company.
These, in substance, are (1) that his services were no longer required and (2) to
prevent him from acquiring a seniority status. The crux of the case is, would
Rotolo have continued in the Company's employ after November 23, 1960, had
not Moyer made it patent that he was persona non grata to the Union?
On the one hand it is asserted that as business was dropping off in November, it was
decided not to fill Braun's place and .to get along with four regular drivers until con-
-ditions improved. On the other hand we have the Company's general manager's
avowal that the fruits of the sales campaign were becoming apparent on or before
the first of November, a month or so before the discharge. These conflicting ex-
pressions are difficult to reconcile. In any event, the fact of McDonald having been
hired almost immediately after Rotolo was summarily discharged, weeks after the
Company had reason to believe its sales campaign was clicking , is a strong indi-
cation a fifth driver was indeed needed. Lest it be said that McDonald was em-
ployed only as a "casual," it is to be remembered that on such a basis all truck
operators were first hired and worked until the expiration of 30 consecutive days
when under the contract they became "regular."
Why was it then that McDonald was allowed to work out his 30-day period and
to become a seniority status driver, still working for the Company, whereas Rotolo,
an admittedly experienced and capable truck operator, was cut off at the end of 28
days? Can we believe that the Company genuinely apprehended that if Rotolo had
been allowed to work more than 30 days and then discharged by reason of lack of
work or for inefficiency or for no reason, the Union would retaliate in behalf of
its thorn in flesh? What reason could there have existed for the Company's desire
not to allow Rotolo, who had been expelled by the Union, to achieve seniority
status other than that Moyer admonished McNelly that he was strictly a trouble-
maker, a bad actor, and a problem who was always running to the Labor Board and
had better be watched? What is one to make of McNelly's testimony that before
1 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge Moyer led him to believe the Union would just as soon the Company
did not have Rotolo and that the general idea was that he invited or suggested his
being fired?
Emphasis is placed on the testimony concerning the cordial dealings between the
Company and the Union and the Company's desire to continue that relationship.
That is all to the good provided it does not add up to depriving a man of a liveli-
hood in his trade. After Moyer disclosed his deep-seated resentment toward an
employee who had caused the union trouble by running to the Labor Board in the
Goetzman and Newman case and in the Cabby Transportation situation, Rotolo,
was complaisantly, even if not blithely, cast in limbo.
Counsel for the Union stated in argument that his client did not "want" Rotolo-
back and that it would not have been "fair" to the Company not to have disclosed
that he was a to-be-watched troublemaker. It is clear that a collectivelbargaining
agent has a judicially enforceable obligation to represent fairly and without dis-
crimination all employees in the bargaining unit. See Steele v. Louisville & Nash-
ville R. Co., 323 U.S. 192 (1944); Syres v. Oil Workers Union, 350 U.S. 892
(1955), reversing 223 F. 2d 739 (C.A. 5, 1955); Conley v. Gibson, 355 U.S. 41
(1957); Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151 (1957); King,
Protecting Rights of Minority Employees, 11 Labor L. J. 143 (1960); Wellington,
Union Democracy and Fair Representation: Federal Responsibility in a Federal
System, 67 Yale L. J. 1327, 1335 (1958); Givens, Federal Protection of Employees
Rights Within Trade Unions, 29 Ford. L. Rev. 259 (1960). This is true whether
or not they are, or "wanted" as, union members. See Syres v. Oil Workers Union,
350 U.S. 892 (1955), reversing per curiam 223 F. 2d 739 (C.A. 5), extending the
duty of fair representation to cases arising under the National Labor Relations Act
as well as the Railway Labor Act and to union members as well as those excluded
from union membership. See generally Cox, The Duty of Fair Representation, 2
Vill. L. Rev. 151 (1957); Wellington, Union Democracy and Fair Representation:
Federal Responsibility in a Federal System, 67 Yale L. J. 1327 (1958); Note, 49
Nw. U. L. Rev. 357 (1954) ; Comment, 59 Colum. L. Rev. 190, 199-201 (1959).
In Steele v. Louisville & Nashville, supra, the foundation decision establishing the
obligation of fair representation, Chief Justice Stone wrote for the Court that:
While the [Railway Labor Act with which the NLRA is similar ] does not deny
to . . a bargaining labor organization the right to determine eligibility to its,
membership, it does require the union . to represent non-union or minority
union members of the craft without hostile discrimination, fairly, impartially,
and in good faith. .. .
It scarcely may be doubted that a collective-bargaining representative owes at
least as much of an obligation to be fair to all employees in its bargaining unit as it
does to their employers. A representative is one who stands for another, impressed
with the obligation to maintain, uphold, promote, advance, and further the interests,
of the person represented. Louisville & Nashville tells us that this obligation re-
quires of a union fair, impartial, good-faith employee representation without hostile
discrimination. In the cases before me, I am unable to conclude that the Union
maintained , upheld, promoted, advanced, or furthered Rotolo's interests or that it
represented him fairly, impartially, in good faith and without hostile discrimination.
Indeed, all implications are to the contrary.
These obligations of fair representation are not altered in any way by the Labor-
Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. Sec.
401, et seq., because that Act specifically preserves all rights under the National
Labor Relations Act and the Railway Labor Act, and the duty of fair representation
flows from the exclusive bargaining authority conferred by those statutes
Furthermore, the LMRDA itself apparently confers rights upon employees re-
jected for union membership. Although the statute deals primarily with the rights
of union "members," Section 3(o) defines membership within the meaning of the
Act in terms of one who has met the "requirements for" membership, not in terms
of actual admission to membership Section 2 of the Act states that among its ob-
jectives are to remedy "disregard of the rights of individual employees" and to "af-
ford necessary protection of the rights and interests of employees." Protection of
the rights of union members under the Act should therefore be a means to this end.
The means would defeat the end if a denial of union membership could lead to denial
of rights under the Act.
A cause is that which produces an effect; it is that without which a result would
not have been; it is a circumstance that brings about or contributes to a result. I
am satisfied that had it not been for the circumstance of Moyer, by proclaiming his
profound disapproval of a man who had brought about the union trouble with the
ST. JOE PAPER COMPANY 1351
Labor Board and his suggestion that Rotolo be discharged, there would not have
been produced the result which ensued. That there was a proximate casual rela-
tionship between the Moyer's disparagement of Rotolo and his discharge, I feel
certain. This assurance on my part could not be' legally less controlling, though ad-
ditional causes, if any there conceivably could have been, should also exist. It
matters not whether Moyer ordered or requested or simply "invited" the layoff. It
is the result that counts.
But the case against Respondents is stronger than this. Quite naturally they
strenuously argue that Barbato's testimony should be utterly disregarded and that
LaMagro's denial that he disclosed that he had to fire Rotolo and let him go be-
fore the 30-day period was up, on account of the Union, should be fully accepted.
There is no indication other than his friendship with Rotolo that Barbato was an
interested witness. So too was LaMagro friendly with Rotolo, his hunting com-
panion, a man to whom he had given the job. Yet he admits that he deceived his,
intimate by telling him on the Sunday and again on the Tuesday after he was dis-
charged that he had not been laid off or that he did not know he had been dis-
charged when as a matter of fact he had known since the preceding Wednesday that
such was the case. I doubt that he was more candid with me, a complete stranger,
than he was with his pal. Under the relaxed atmosphere of the festive eve at the
Bowles bistro, I believe that LaMagro in unguarded moments confided the truth.
In vino veritas. Out of a sense of loyalty-often a euphemism for self-preservation-
to his Company, Supervisor LaMagro understandably, if not excusably, felt himself
under obligation or constraint not to disclose any information inimical to his em-
ployer's interests. Only to well was he aware of the Union's power and the fate
of his friend who had incurred its displeasure. Barbato's reluctant performance on
the witness stand unhappily faced by friends in dispute, I attribute to his expressed
desire "not to get anyone in trouble." It may be added that "anyone" included
himself.
It is urged that the evidence presented by the Company that no one other than
McNelly and Spies knew that Moyer had given McNelly a bad report about
Rotolo, that McNelly said "we didn't want him in the organization, to let him go;
and not to pass on that to the supervisors," and that this information was not passed
on to the supervisors establishes as a fact that LaMagro could not have known that
Rotolo was discharged, as Barbato testified he told him, "on account of the Union."
Readily may be divined the wish to hold secret the sequel that upon receiving the
Union's bad report Rotolo was let go. Revealing as is this testimony from the
Company's production superintendent as to the true reason behind Rotolo's dis-
charge, any discerning person will realize it is unlikely, yes incredible, that any
supervisor, hiring and directing the activities of only five permanent truckdrivers
and who had advocated the selection of a particular man to fill a regular job
vacancy, would not find out sooner or later why his choice had instead been,
fired.
Section 8(b)(1) (A) and 8(a)(1) of the Act prohibit a union and an employer,
respectively, from restraining or coercing employees "in the exercise of the rights
guaranteed in Section 7." Included in the latter section is the right of an employee,
with one exception not here relevant, to join or to abstain from joining a labor
organization, and to be a good, bad, indifferent, or expelled member without
jeopardizing his job rights. The Radio Officers' Union of the Commercial Telegra-
phers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U S. 17, 40;
N.L.R B. v. Brotherhood of Painters, etc., et al. (Spoon Tile Co.), 242 F. 2d 477,
481 (C.A. 10); N.L.R.B v. George W Reed, 206 F 2d 184, 189 (C.A. 9). Inso-
far as the employer is concerned, Section 8(a)(3) of the Act imposes the obligation
to resist union pressures, whether demands or suggestions, to effect discharges for
the purpose of constraining participation or acquiescence by the employee in union
activities or policies. If he yields to a union, the employer violates the Act, and,
it is immaterial that the employer is motivated solely by the desire to avoid friction
with the union even of a character which might result in the disruption of his
business activities. N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2d 235, 237
(C.A. 2); N.L.R.B. v. National Broadcasting Co., Inc., et al., 150 F 2d 895. 900
(C.A. 2); N.L.R.B. v. Imparato Stevedoring Corporation, 250 F. 2d 297, 302 (C.A.
3); N L.R.B. v. Hudson Motor Car Company, 128 F 2d 528, 532-533 (C.A. 6).
As a further defense, Respondents point out that when Board Representative
McNamara interviewed McNelly in behalf of the Regional Director in connection
with the investigation of the charge from which this case (Case No. 3-CA-1538)
emanated, McNelly agreed in writing to take Rotolo back It does not appear,
however, that any offer of full reinstatement to Rotolo of his former or substantially
equivalent position, without prejudice to, or loss of, or the right to and privilege of
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 28 of the 30 days prerequisite under the collective-bargaining agreement for the
acquisition of seniority status, or any offer to make Rotolo whole for any loss of pay
he may have suffered by reason of his discharge, was made. This of course is a
matter of compliance, not properly before me, as with some pains explained in the
colloquy appearing on pages 89 and 90 of the record. It was, however, argued
that this offer contraindicates a discharge at the Unions' instance. Equally could
it be claimed betokenative of apprehension of wrongdoing. Unbecoming would
seem acceptance of either hypothesis.
The Union is extolled for assertedly not having sought Rotolo's liquidation at the
hands of Ryan Carting Company, nor by St. Joe immediately upon learning of
his employment there. While making no claim to be a motivational research ana-
lyst, I am familiar with neither precept of experience nor rule of jurisprudence to
the effect that because a man does not break the law at every opportunity, he could
not have transgressed it on occasion.
I conclude and find that by discharging James Rotolo on or about November 23,
1960, the Respondent Company violated Sections 8(a)(3) and (1) and 2(6) and (7)
of the Act. I conclude and find that the Respondent Union caused the Respondent
Company to discharge and discriminate against Rotolo and that the Respondent
Union thereby violated Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the three Respondents set forth 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.
VI. THE REMEDY
Having found that each of the Respondents has violated the Act, I shall recom-
comend that they cease and desist therefrom. I further recommend that the Com-
pany offer James Rotolo immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
and privileges; and that the Union notify the Company and Goetzman and Newman,
Inc., in writing and furnish a copy thereof to Rotolo that it withdraws its objections
to his employment and requests the Company and Goetzman and Newman, Inc., to
offer Rotolo reinstatement. I also recommend that the Company and the Union
jointly and severally make Rotolo whole for any loss of pay suffered by reason of
discrimination against him while employed by the Company and the Union make
him whole for any loss of pay suffered by reason of discrimination against him
while employed by Goetzman and Newman, Inc., by payment to him of a sum of
money equal to the amount he would normally have earned as wages from the date
of each discrimination until compliance by each Respondent respectively with the
reinstatement provisions, less his net earnings during this period. The loss of earn-
ings shall be computed in accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289. Respondent Union's liability shall terminate 5 days after
its notification to the Company and Goetzman and Newman, Inc., that it has with-
drawn its objection to the reemployment of Rotolo. In addition, I recommend that
the Company make available, and Goetzman be requested to make available, to
the Board, upon request, payroll and other records to facilitate the checking of
compliance with these recommendations.
CONCLUSIONS OF LAW
1. Respondent St. Joe Paper Company and Goetzman and Newman, Inc., are
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Local 118, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging James Rotolo for reasons other than his failure to tender
periodic dues and initiation fees to Respondent Union, Respondent St. Joe Paper
Company, violated Section 8(a)(3) and (1) of the Act.
4. By causing Respondent St. Joe Paper Company and Goetzman and Newman,
Inc., to discharge James Rotolo for reasons other than his failure to tender periodic
dues and initiation fees, Respondent Union violated Section 8(b)(2) and (1)(A)
-of the Act.
5. 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.]