State Packing Co.

National Labor Relations Board - Board Decisions

Aug 4, 1960

128 N.L.R.B. 432 (N.L.R.B. 1960)

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State Packing Company and Lawrence Mitchell
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 563 and Lawrence Mitchell. Cases
Nos. 21-CA-3327 and P21-CB-1226. August 4, 1960
DECISION AND ORDER
On April 8, 1959, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents 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, Respondent Union
filed exceptions to the Intermediate Report and a supporting brief.
On November 18, 1959, the Board (Member Jenkins dissenting) re-
manded the case for additional evidence. Pursuant to this remand, a
hearing was held and a Supplemental Intermediate Report was issued
by the above-named Trial Examiner on February 15, 1960.1
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Reports, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications and addi-
tions indicated.
We find, in agreement with the ultimate conclusion of the Trial
Examiner, that Respondent Company and Respondent Union violated
Section 8(a) (3) and (1) and Section 8(b) (1) (A) and (2) of the
Act, respectively, by invoking their union-security contract against
Lawrence Mitchell to deny him employment. In so finding we rely
on the following considerations.
The union-security provision invoked against Mitchell reads as
follows :
All employees who are members of the Union on the date of
the execution of this Agreement shall remain members of the
Union in good standing for the duration of this contract, as a
condition of employment. All present employees who are not
members of the Union shall become members of the Union within
thirty (30) days after the execution of this Agreement, or within
thirty (30) days after the date of their employment, for the
duration of this Agreement, as a condition of employment. All
new employees hereafter hired by the Employer shall become
1 As the evidence adduced at the reopened hearing does not materially alter the factual
picture presented by the Intermediate Report, we are not attaching the Supplemental
Intermediate Report hereto.
128 NLRB No. 52.
STATE PACKING COMPANY 433
members of the Union within thirty (30) days from the date of
their employment for the duration of this Agreement, as a condi-
tion of employment.
It shall be the duty of the Employer to notify all new employees
that they must become members of the Union within thirty (30)
days after the date of their employment. Such notice shall be de-
livered to the employee during the third week of his employment.
In Chun King Sales, Inc., 126 NLRB 851, decided subsequent to the
remand in the instant case, it was held that union-security provisions
requiring union membership "within" 30 days do not grant the full
30-day grace period required by the Act and are thus unlawful. It
accordingly follows that the union-security provision advanced here
as a defense to the unfair labor practice charges is not a lawful one
and therefore cannot serve to justify Respondents' treatment of
Mitchell.2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Company, State Packing Company, Vernon,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:'
(a) Encouraging membership in Amalgamated Meat Cutters R
Butcher Workmen of North America, AFL-CIO, Local 563, or in
any other labor organization of its employees, by discharging or ter-
minating employees for lack of union clearance or discriminating in
any other manner in regard to hire or tenure of employment or any
term or condition thereof, except as authorized by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by Section
7 of the Act, except to the extent permitted under Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Lawrence 'Mitchell employment as an extra on a non-
discriminatory basis if and when extra employees are used and con-
sider him for hire as a regular employee on a nondiscriminatory basis
2 In view of our holding herein, we find it unnecessary to determine whether a union-
security clause may legally be invoked against "extra" or "casual" employees , nor need
we determine whether, under a legal union -security clause, an employee could lawfully
be denied employment for refusing to pay such a reinstatement fee as was demanded of
Mitchell by Respondent Union herein in order to reacquire membership in good standing.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if and when it hires regular employees, and, jointly and severally with:
Respondent Union, make him whole for any loss of pay suffered by
reason of the discrimination against him in the manner set forth in
"The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records or reports, and all
other records necessary to determine the amount of backpay due under
the terms of this Order.
(c) Post at its place of business at Vernon, California, copies of the
notices attached hereto marked "Appendix A" and "Appendix B." 3
Copies of said notices, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being signed by Respondent, be
posted by Respondent Company immediately upon receipt thereof and
maintained for at least 60 consecutive days thereafter, in conspicuous.
places, including all employee bulletin boards and places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent Company to insure that said notices are not altered,,
defaced, or covered by any other material.
(d) Mail to the Regional Director for the Twenty-first Region
signed copies of said Appendix A for posting by the Respondent
Union as hereinafter provided.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days of the date of this Order, what steps it has,
taken to comply herewith.
B. The Respondent Union, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL--CIO, Local 563, its officers, agents,,
representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause State Packing Company to
discharge, terminate, or in any other manner discriminate against
employees, in regard to hire or tenure of employment, or any term or
condition thereof, except as authorized by Section 8(a) (3) of the Act,,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(b) In like or related manner restraining or coercing employees of
State Packing Company in the exercise of the rights guaranteed by
Section 7 of the Act, except as authorized by 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) Jointly and severally with State Packing Company make
Lawrence Mitchell whole for any loss of pay suffered by reason of
81n 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."
STATE PACKING COMPANY 435
the discrimination against him in the manner set forth in "The
Remedy" section of the Intermediate Report.
(b) Post at its business offices and usual membership meeting places,
in Vernon and Los Angeles, California, copies of the notices attached
hereto marked "Appendix A" and "Appendix B." Copies of said
notices, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by Respondents, be posted by
Respondent Union immediately upon receipt thereof and maintained
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Twenty-first Region
signed copies of said Appendix B for posting at the place of business
of Respondent Company as provided above.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Order.
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 Amalgamated Meal.
Cutters & Butcher Workmen of North America, AFL-CIO, Local
563, or in any other labor organization of our employees, by dis-
charging or terminating employees for lack of union clearance,
or by discriminating in any other manner in regard to hire or
tenure of employment, or any term or condition thereof, except
as authorized by Section 8 (a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed
by Section 7 of the Act, except to the extent permitted under
Section 8 (a) (3) of the National Labor Relations Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL offer Lawrence Mitchell employment as an extra on
a nondiscriminatory basis if and when we use extra employees
and we will consider him for hire as a regular employee on a,
nondiscriminatory basis if and when we hire regular employees.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL jointly and severally with Amalgamated Meat Cutters
Butcher Workmen of North America, AFL-CIO, Local 563,
make Lawrence Mitchell whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become, remain, or refrain from be-
coming members of any labor organization, except to the extent this
right may be affected by an agreement in conformity with Section
8(a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
STATE PACKING 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.
APPENDIX B
NOTICE TO MEMBERS OF THIS UNION AND EMPLOYEES OF
STATE PACKING 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 give notice that:
WE WILL NOT cause, or attempt to cause, State Packing Com-
pany to discharge or terminate employees or in any other manner
discriminate in regard to hire or tenure of employment, or any
term or condition thereof, except as authorized by Section 8 (a) (3)
of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees of State Packing Company in the exercise of the rights
guaranteed by Section 7 of the National Labor Relations Act,
except as authorized in Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL jointly and severally with State Packing Company
make Lawrence Mitchell whole for any loss of pay suffered as a
result of the discrimination against him.
AMALGAMATED MEAT CUTTERS & BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO,
LOCAL 563,
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.
STATE PACKING COMPANY
INTERMEDIATE REPORT AND RECOMMENDED ORDER
437
STATEMENT OF THE CASE
The complaint alleges that Respondent Company, State Packing Company, and
Respondent Union, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 563, are parties to a collective-bargaining agreement
containing a union-security clause and that on or about October 28, 1958, Respond-
ent Union caused Respondent Company to discharge Lawrence Mitchell pursuant
thereto, although Mitchell had been employed less than 30 days and also was not
in the bargaining unit, thereby engaging in unfair labor practices-Respondent
Company within the meaning of Section 8(a)(1) and (3) and Respondent Union
within the meaning of Section 8(b)(1)(A) and (2) of the Act. The answers of
both Respondents deny the commission of any unfair labor practices.
A duly noticed hearing was held before the duly designated Trial Examiner at
Los Angeles, California, on February 9, 1959. The parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Oral argument at the close of the
hearing was waived and briefs have been submitted by all parties.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
State Packing Company is a California corporation which maintains its principal
office and place of business at Vernon, California, where it is engaged in the business
of livestock slaughtering and the sale of meat and meat products. During the year
1958, it purchased products valued in excess of $50,000 which were shipped directly
to its plant from points outside the State of California. I find that the operations
of Respondent Company affect commerce and that it would effectuate the purposes
of the Act to assert jurisdiction herein.
If. THE LABOR ORGANIZATION INVOLVED
Respondent Union, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 563, is a labor organization admitting to membership
the employees of Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. The issue; introduction
Lawrence Mitchell was terminated by Respondent Company upon the demand of
Respondent Union on or about October 28, 1958. The sole issue herein is whether
the contract between Respondents containing the customary union-security clause,
the language of which is not attacked, was improperly applied in the case of Mitchell.
The General Counsel claims that Mitchell as an extra employee had worked less
than 30 days for Respondent Company at the time of his termination. Respond-
ents claim that Mitchell had worked more than 30 days, both in terms of the
calendar as well as days worked. The General Counsel's claim that Mitchell was
not within the bargaining unit is actually corollary to the foregoing, his basic position
being that the contract together with its unit description did not apply to Mitchell
or any other extra until he had been in an employment relationship of a permanent
or at least stable nature for 30 days.
B. The contract
The contract whose application is under consideration herein is a contract from
March 1, 1956, through September 30, 1959, between Respondent Union and a
group of 19 companies including Respondent Company who are described as the
"Independent Meat Packers." Therein Respondent Union is recognized as the
bargaining representative of "all production workers except Operating Engineers,
Teamsters, Office and Clerical Workers, non-working Foremen, and . snner-
visory employees . . " In an appendix are listed, inter aka, 22 job classifications
for the kill floor plus that of common laborer and their respective wage rates.
577684-61-vol. 12 8-2 9
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The agreement further provides as follows:
3. All employees who are members of the Union on the date of the execu-
tion of this Agreement shall remain members of the Union in good standing
for the duration of this contract, as a condition of employment. All present
employees who are not members of the Union shall become members of the
Union within thirty (30) days after the execution of this Agreement, or within
thirty (30) days after the date of their employment, for the duration of this
Agreement, as a condition of employment. All new employees hereafter hired
by the Employer shall become members of the Union within thirty (30) days
from the date of their employment for the duration of this Agreement, as a
condition of employment.
It shall be the duty of the Employer to notify all new employees that they
must become members of the Union within thirty (30) days after the date of
their employment. Such notice shall be delivered to the employee during the
third week of his employment.
C. Regular and extra classifications
Respondent Company has two classifications of employees, viz, regulars and
extras, the number of the latter not being set. A regular is a full-time employee who
works 40 hours a week, acquires seniority, and is paid on a weekly basis. In
October 1958 the kill floor, the section in which Mitchell worked, had 27 regular
employees but at the time of this hearing, February 1959, this number had been
reduced to 21. The status of the extra, which was that of complainant Mitchell at
the time of his termination, is in marked contrast. The number of extras used on
the kill floor will vary from none to three. As Superintendent Sollie Gazin of
Respondent Company testified, extras are hired when the size of the kill requires it
or when regular employees are ill or on vacation.
The manner of hiring extras is not unlike that of the shapeup on the waterfront.
Would-be applicants for work as extras appear at the plant loading dock on any
given morning. If any are needed they are "employed with the stipulation that
they are just filling one day's work. . They may not show up for months after
that one day's work." As for the hiring procedure Gazin testified that some days
no would-be extra employees appeared on the scene and on others there would be
as many as four or five. He added that "If anybody shows up, we ask them to wait
around in case we do need somebody, if they would like to wait around. We do
not promise them anything because we never know."
These extras do not acquire seniority with Respondent Company and they are
guaranteed only the day's work. This usage of extras, it is to be noted, is covered
by the union contract which contains requirements that extras must receive 8 hours'
work and that they be paid 10 cents an hour in excess of the rate for regulars.'
An extra may work for Respondent Company on this basis for years and not
become a regular, although as will appear, Mitchell did for a brief period. Another
characteristic is the fact, as demonstrated in the case of Mitchell, that extras also
work for other slaughterhouses which are grouped in the immediate area. It
appears that the practice is for the would-be extra to go from employer to employer
in search of this extra work; according to Mitchell, there are some 30 to 35 such
concerns in the immediate area.
D. Employment and termination of Mitchell
Mitchell has worked for Respondent as an extra for approximately 6 years but
the record does not disclose the extent thereof prior to 1958. In 1958, he worked
as an extra for 7 days in January, 1 in May, 1 in July, 3 in August, and 2 in Sep-
tember. He was then hired as a regular on September 8 but was terminated as a
regular on September 19; this regular work totaled 9 days. Thereafter, as an extra,
he was utilized more fully, working 1 day in the week ending October 4; either 4
or 5 days in that ending October 18; 3 days in the week ending October 25, in a
job described as that of "gut trucker": and 2 days on October 27 and 28, as de-
scribed below. His gross earnings in 1958 with Respondent Company were $662.97.
It is to be noted that between September 1957 and October 1958 Mitchell had
also worked as an extra for other packing plants in the area. This work was ob-
tained in the same manner as he obtained extra work with Respondent, namely
1 As noted, the regulars are paid a weekly salary provided under the contract. The
extra rate for the respective classifications is arrived at by dividing the regular salary by
40 and adding 10 cents per hour.
STATE PACKING COMPANY 439
by going from plant to plant among these concentrated plants until hired. Ap-
parently most of these other concerns, if not all, are signatory to the industry
contract. In addition, between January and September 1957, Mitchell did work
as a regular for a concern identified as the Farmer Jones Packing Company which
does not appear to be a member of the group named in the contract; the record
does not disclose which labor organization, if any, represents its employees.
As for his union activities, Mitchell is not a stranger to Respondent Union. He
has been a member approximately three different times since 1952 and his initial
membership was taken out while working as an extra for one of the signatories to the
industry contract. Union dues for an extra are $1.75 a month whereas those of a
regular are $5. Under the union bylaws, one not paying his dues for 3 months is
automatically suspended and may obtain reinstatement only by paying a $50 rein-
statement fee. This reinstatement fee is the rock upon which Mitchell foundered in
October 1958. According to Mitchell, he had paid this reinstatement fee several
times in the past after having been out of work for 90 days and presumably paying
no dues during those periods. It is clear however that he paid no dues in 1958 with
the consequence that he was not in good standing by October 1958 when his dis-
charge came about under the circumstances set forth below.
Respondent Company's records demonstrate and I find that Mitchell had worked
somewhat in excess of 30 working days in 1958; as demonstrated, all of these but 9
were worked as an extra. Thus, both in terms of the calendar as well as working days
alone, Mitchell had worked for Respondent Company more than 30 days in 1958.
On or about October 24, 1958, Respondent Company was considering expanding
its kill floor operation. By coincidence, Mitchell, relying on a sudden vacancy in
the plant, asked Superintendent Gazin for a job as a regular, and the latter replied
that he might be able to use him as a regular. Gazin admitted that he told Mitchell
he would have to abide by union regulations in order to have a steady job.
On or about October 24 shop stewards of various packing plants in the area, pre-
sumably those covered by the contract, held a meeting at the union hall. Among
them was Shop Steward Espiridion Cuevas of Respondent Company who brought up
the subject of Mitchell's status in the Union. He notified President James Rodriguez
of Respondent Union that he, Cuevas, had heard Mitchell and another employee,
Sloan, might be placed on a regular basis by Respondent Company. Rodriguez
instructed Cuevas to notify the two employees to report to the union office on Mon-
day, October 27 On Monday morning, according to Cuevas, he told the two em-
ployees that they should "go to the union and get straightened out" after work
that day. Gazin admitted that either on October 24 or 27 the union steward had
stated Mitchell was required to report to the Union and either join or straighten out
his delinquent dues, claiming that Mitchell had worked his probationary period
(presumably a reference to the 30-day clause); Gazin did not check his records
in this respect
On Tuesday morning, October 28, Cuevas told Superintendent Otis Burnett of the
kill floor, a supervisory employee, that he, Cuevas, had "instructions not to let them
work unless they cleared through the union." The other employee involved, Sloan,
promptly reported to the union hall and was permitted to resume work. Burnett
proceeded to question Mitchell concerning the matter and initially refused to permit
him to work that day. Cuevas also discussed the matter with Gazin that morning
and took the position that Mitchell could not work. Gazin told Mitchell to comply
with his obligations to the Union and Mitchell replied that he had arranged to visit
the hall after work that day, as in fact he had. The matter was resolved with
Mitchell being permitted to finish the day, contingent upon visiting the union hall
after work.
Mitchell reported to the union hall after work that day and in the absence of
President Rodriguez spoke with Union Representative Arv Eaton. It appears that
Eaton had a telephone conversation with Rodriguez while Mitchell was in the office
and Eaton then informed Mitchell that he had to pay a $50 fee or not be permitted to
work for Respondent Company. Mitchell did ask for time until Friday, October 31,
to pay up but his request was refused. On Wednesday morning, October 29, Mitchell
telephoned Rodriguez and again asked for time until October 31 to pay up Rod-
riguez refused this request as well as another request to pay part of the sum
immediately.
Mitchell proceeded to the plant on October 29 and arrived at 7:30 or 8 a.m.
Normally in seeking extra work he would have appeared at 6 or 6:30 a in. in order
to be available for work at the commencement of the 7 a in. shift. Gazin was not in
and Mitchell spoke with Burnett. According to Mitchell's uncontroverted testi-
mony, he told Burnett that he "didn't get clear with the union." Burnett replied
that "if I hadn't got clear I couldn't work anyway." Burnett also drew attention to
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that Sloan was back to work, presumably a reference to his adjustment of
his differences with Respondent Union. According to Gazin, Mitchell telephoned
him that day and stated that he "wouldn't be able to work ... he was supposed to
raise money to pay his dues. .. ... Gazin admittedly assumed that Mitchell had been
to the union hall on the previous day. I find that Mitchell was in search of work on
this occasion.
Mitchell did not return to the plant for the remainder of that week but testified
that he unsuccessfully sought extra work at the plant almost every morning during
the following weeks and until sometime in January. He also testified that he started
to show up for extra work subsequent to Monday, November 3. Gazin claimed
that he next observed Mitchell seeking extra work around the end of November and
that he had previously instructed his staff to hire Mitchell for extra work if he was
the best man available. This instruction from Gazin was presumably issued after
reception by Respondent Company of a letter from Respondent Union dated Novem-
ber 17 which reads as follows:
Regarding Lawrence Mitchell the employee you dismissed because of non-
payment of dues, may be reemployed immediately if you so desire. [sic]
The Field Representative of the National Labor Relations Board informed
the Union that you had regular employment for Mitchell as of November 1st,
1958. Of course you know that under the terms of the Contract you have the
right to hire any worker that you may wish.
A copy of this letter was sent to Mitchell by certified mail with return receipt re-
quested. Although directed to his address as reflected on the charge filed by him
against Respondent Union, it was not delivered, was not claimed, and has been
returned to Respondent Union.
The precise usage of extras by Respondent Company on its kill floor and else-
where on and after October 29 is not disclosed but the record does reveal that Re-
spondent Company used extras during the weeks of November 8 and 15, 1958; at
least one of these was used on the kill floor.
The General Counsel has claimed that Mitchell was notified prior to this dispute
that he was scheduled to start working as a regular but the testimony in the record
does not go this far. Gazin testified that he told Mitchell he might be able to use
him as an extra if the kill floor operation was expanded, but claimed uncontrovertedly
that the expansion did not take place. Mitchell's testimony was conflicting. He
testified both that Gazin predicated the regular job on an expansion of the kill
floor operation and that Gazin did not. And although the. General Counsel has
stressed the treatment of Sloan and his being put on as a regular, this does not prove
Mitchell's case in this respect. Their cases are similar only with respect to clearance
by the Union. While Sloan did change to regular status late in October and worked
in that capacity until January 1959, it is not shown that Sloan received a position
that Mitchell would have received but for his termination. Hence the preponder-
ance of the evidence in this record is that any work Mitchell lost was as an extra,
plus elimination from consideration for future hire as a regular.2
E. Conclusions
it is clear from the foregoing that Respondent Union caused Respondent Company
to cease employing Mitchell as an extra, as well as to remove him from consideration
for future hire as a regular. The union-security clause is not attacked as such and
it is clear that if Mitchell was reachable under the clause, the termination was brought
about because of nonpayment of dues, a reason recognized under the Act. The
issue then is posed whether the union-security clause was applied sooner than
"the thirtieth day following the beginning of such employment."
The General Counsel has contended that Mitchell had not been employed 30 days
by Respondent Company within the meaning of the proviso to Section 8(a)(3) of
the Act His position is that the reference to "the beginning of such employment"
in the proviso implicitly and perforce describes an employment relationship which
is either continuing or regular in nature.
The General Counsel has also directed attention to the casual and sporadic nature
of Mitchell's employment and the fact that he worked for other employers during
this identical period in which the 30 days of employment allegedly accumulated
Moreover, although most of the related employers in this area appear to be signatory
2 The record does not disclose what opportunities for work as a regular arose later
except for the hearsay statement in the November 17 letter
STATE PACKING COMPANY 441
to contracts with Respondent Union, if the position of Respondents that Mitchell had
worked in excess of 30 days and therefore could be reached under the union-security
clause were followed to a logical conclusion , this would mean that where a number
of plants of this nature chanced to have contracts with different labor organizations,
the particular extra employee would be required to join each of these labor organi-
zations, hardly a tenable result and clearly an inequitable one.
It is true that Mitchell and other extras have benefited by this contract between
Respondents . In addition to the other respects set forth above, an extra receives
holiday pay when he works both in the week preceding as well as in the week
following a holiday. He comes under the health and welfare plan if he works 80
hours a month. And under the Union's bylaws, his dues are fixed at $ 1.75 rather
than $5 a month if he does not work more than 11 days a month. While in my
belief Respondent Union and Respondent Company believed in good faith that
Mitchell was required to clear up his union status on the theory that he was covered
by the union-security language of the contract and had worked the statutory period,
both in terms of 30 working days as well as 30 days by the calendar , this cannot
constitute a defense if in fact the legal position of Respondents was in error.
This is not to say that a steady part-time employee or one who may be an extra
in name only because he works every day in the week may not be subjected to a
union-security clause. It is to say, and indeed Superintendent Gazin so contended
in his testimony , that the extra employee receives a promise of 1 day's work and
nothing more . This is hardly an employment relationship of a continuing nature.
I find that Mitchell's employment was terminated at the close of each day he worked
as an extra employee for Respondent Company and that his prior employment
could not be used in computing the number of days he had worked for the purpose
of requiring membership in Respondent Union.
My attention has not been directed to any decision directly in point , but there
is an analogy to a situation where an employee has been prematurely and improperly
subjected to a union-security clause because, during a prior period of employment,
he had worked more than 30 days for the same employer . Convair , A Division of
General Dynamics Corporation , 111 NLRB 1055, 1056. See also Idarado Mining
Company, 77 NLRB 392, 393. In view of all the foregoing considerations, I find
that Respondent Union prematurely caused Respondent Company to deny further
employment to Lawrence Mitchell on and after October 29 , 1958, in the capacity of
an extra as well as to remove him from consideration for a regular job. I find that
by such conduct Respondent Company has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act and has thereby interfered with,
restrained , and coerced employees in the exercise of the rights guaranteed by Section
7 of the Act , within the meaning of Section 8(a)(1) thereof . I further find that
Respondent Union by the foregoing conduct has engaged in unfair labor practices
within the meaning of Section 8(b)(2) and ( l)(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 connec-
tion with the operations of Respondent Company set forth 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices , I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act . It has been found that Respondent
Union caused Respondent Company to discriminate with respect to the hire and
tenure of employment of Lawrence Mitchell. I shall therefore recommend that
Respondent Company offer employment to Mitchell as an extra on a nondiscrimina-
tory basis if and when it uses the services of extra employees , and further that it
consider him for hire as a regular employee on the same nondiscriminatory basis
if and when it hires regular employees.
I shall further recommend that Respondents jointly and severally make Mitchell
whole for any loss of pray suffered by reason of the discrimination against him. Said
loss of pay, based upon earnings which Mitchell would have earned from the date
of the discrimination , shall be computed in the manner established by the Board in
F. W. Woolworth Companv., 90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling
Company, of Miami, Inc., 344 U.S. 344. The liability of Respondent Union with
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to backpay shall terminate 5 days after November 19, 1958, the date on which
its letter of November 17, 1958, was delivered to Respondent Company.3
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO,
Local 563, is a labor organization within the meaning of Section 2(5) of the Act.
2. State Packing Company is an employer within the meaning of Section 2(2) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Lawrence
Mitchell, State Packing Company has engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act, State Packing Company has engaged in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By causing State Packing Company to discriminate in regard to the hire and
tenure of employment of Lawrence Mitchell in violation of Section 8(a),(3) of the
Act, Respondent Union has engaged in unfair labor practices within the meaning of
Section 8(b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
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.]
3 Respondent Company having thereby been notified of the withdrawal of objections to
Mitchell's employment ; the latter apparently having avoided delivery of a copy of the
Union's letter; and the latter having been present in the hearing room when Respondent
Union stated on the record that the letter was sent to Mitchell to notify him that the
Union had no objections to his employment by Respondent Company, it will not be
recommended that another letter of this nature be served by Respondent Union on
Respondent Company and Mitchell
Universal Metal Products Corporation I and International
Drivers & Helpers Union , Local 610, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men & Helpers of America 2 and Stove Mounters International
Union of North America, AFL-CIO 3 and Local 2, Inter-
national Union of Operating Engineers , AFL-CIO,4 Petitioners.
Cases Not. 14-RC-3746,14-RC--3751, and 14-RC-3762. August 5,
1960
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9(c) of the
National Labor Relations Act, a consolidated hearing was held before
Walter A. Werner, hearing officer, on February 12, 1960, and before
'The name of the Employer appears as amended at the hearing
2 Referred to herein as the Teamsters
a Referred to herein as the Stove Mounters By order of the Regional Director on
January 15, 1960, this case was consolidated with Case No 14-RC-3746
* Referred to herein as the Operating Engineers . By order of the Regional Director on
January 29, 1960, this case was consolidated with Cases Nos. 14-RC-3746 and 14-RC-
3751, heretofore consolidated on January 15, 1960.
128 NLRB No. 55.